Dismissals related to health and safety 





Under sections 44 and 100 of ERA 96, an employee must not suffer a detriment, be dismissed or made redundant wholly or mainly for:



• carrying out functions as a safety rep;




• raising health and safety concerns with the employer;




• participating in safety consultations with the employer;




• leaving or refusing to return to a place of work in circumstances of “serious and imminent danger”, or taking other appropriate steps to protect themselves or others in these circumstances; or 





• carrying out safety duties designated by the employer.





The dismissal is automatically unfair and no service is required. Examples include a finding of unfair dismissal for refusing to drive defective vehicles, and a young female employee who refused to take rubbish alone at night to a deserted dump. Steps to protect members of the public are also covered. For example, in Masiak v City Restaurants (UK) Limited [1999] IRLR 780, a chef dismissed for refusing to cook food he considered unfit for human consumption was protected. 





“Circumstances of danger” has a wide meaning and includes danger of violence from other employees (Harvest Press Limited v McCaffrey [1999] IRLR 778). However, in Balfour Kilpatrick v Acheson [2003] IRLR 683, staff who walked out over being made to wear damp clothing were unable to show an imminent risk. 





As long as the employee forms a genuine view of a risk that they reasonably regard as serious and imminent, the fact that the employer disagrees with the seriousness of the risk or the appropriateness of the steps taken is irrelevant (Oudahar v Esporta Group Limited [2011] UKEAT/0566/10).




In some circumstances, health and safety reps will also have rights under laws protecting whistleblowers (see Chapter 13).