Health and safety reasons

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

• 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 or 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 relatively 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 a tribunal agrees that there appeared to be “circumstances of danger” which the employee reasonably believed to be “serious and imminent”, the dismissal will be unfair if the main reason for dismissal was that the employee took appropriate steps to avoid the danger. Whether or not the employer agreed with the employee’s assessment of the risk, or with their chosen steps is irrelevant (Oudahar v Esporta Group Limited [2011] UKEAT/0566/10).