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Where dismissal is automatically unfair
[ch 4: pages 57-59]From 6 April 2012, the qualifying period for unfair dismissal clams increased from one year to two years, meaning that employees who start work on or after 6 April 2012 have to complete two years’ service with their employer before they can make claims for unfair dismissal. Certain dismissals are considered to be automatically be unfair and employees are not required to have two years’ service before making a claim. These include dismissals for trade union membership, asserting a statutory right, whistleblowing, pregnancy and maternity reasons and reporting health and safety risks.
Examples of cases where claimants have succeeded in persuading a tribunal that their dismissal was automatically unfair for a health and safety reason include an employee dismissed for refusing to drive defective vehicles and a young female employee, dismissed for refusing 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 not able to show “an imminent risk”.
In 2012, with the support of the general union GMB, social club steward Karen Seacombe won £18,000 compensation for automatic unfair dismissal when she was dismissed from her post after raising health and safety concerns:
Mrs Seacombe refused to provide her mobile phone to answer burglar alarm call-outs at the social club premises where she worked, because she was worried about the risk to her safety if she was expected to attend call-outs on her own at any time of the day or night. After highlighting her concerns in a meeting with her employer, she was then dismissed a few days later for alleged gross misconduct. Finding in her favour, the tribunal agreed that Mrs Seacombe had “raised genuine concerns about her health and safety, particularly as a lone worker at night following alarm calls”.
Seacombe v the Great Western Railway Staff Association (2012, Exeter Employment Tribunal unreported)
In Oudahar v Esporta Group Limited UKEAT/0566/10, the Employment Appeal Tribunal (EAT) examined the extent of the protection of employees who withdraw labour when asked to work in circumstances they reasonably believe to represent a “serious and imminent” danger.
The EAT decided that as long as a tribunal is satisfied that there were “circumstances of danger” which the employee reasonably believed to be “serious and imminent”, any dismissal will be unfair if it was solely or mainly due to the employee taking steps to avoid the danger. In other words, it is wholly irrelevant whether the employer agreed at the time with the employee’s assessment of the risk, or felt that the steps chosen were necessary or appropriate:
Mr Oudahar worked as a chef. Maintenance work had been carried out in the kitchen overnight. The following morning, it was still incomplete, with exposed wires coming out of the walls. He was dismissed for refusing to mop an area of the floor. His employer alleged he refused to obey a reasonable instruction and was in breach of health, safety and food hygiene procedures. At his disciplinary hearing, Mr Oudahar explained his worries about the exposed wires and said the maintenance manager had warned him that day to take care with water. HR then took a statement from the maintenance manager which conflicted with Mr Oudahar’s evidence. The maintenance manager said that in his view, the floor area was not dangerous and that Mr Oudahar had not raised concerns at the time.
The EAT held that Mr Oudahar’s dismissal was automatically unfair. The tribunal confirmed that the correct approach is to ask: Were there circumstances of danger which the employee reasonably believed to be serious and imminent and did he take appropriate steps to protect himself? If yes, was the only or main reason for dismissal the fact that the employee took or proposed to take these steps? If so, the dismissal will be unfair. Here, Mr Oudahar reasonably believed that the combination of water and exposed cabling placed his safety at risk and he took appropriate steps in response, by refusing to mop the floor.
The mere fact that his employer disagreed with his honestly and reasonably held view that the situation placed him at risk in this way was irrelevant. As long as an employee acts reasonably and honestly and takes reasonable steps to avoid the danger, he should not be vulnerable to dismissal just because his employer disagrees with his opinion as to the risk or as to the action required .
Oudahar v Esporta Group Limited [2011] UKEAT 0566/10
Some unions provide useful advice on when workers can “stop the job”. For example, the Community union has produced pocket-sized cards for safety reps which set out the letter of the law, so that reps are clear about their rights if they feel they have to take this step.
In March 2011, the Prison Officers Association (POA) announced, following a wave of violent rioting in several UK prisons, that the union stands behind any member withdrawing to a place of safety following an act of violence, concerted indiscipline or riot where they reasonably believe their health and safety to be at risk.
An employee will still be protected as long as he or she genuinely and reasonably believes that a practice represents a health and safety risk, or a breach of health and safety law, even if this view later turns out to be mistaken. All that matters is that the view was genuinely and reasonably held at the relevant time:
Mr Joao was dismissed from his job as a night porter. He argued that his dismissal was automatically unfair because he was dismissed for complaining to his employer that it was a breach of health and safety legislation to require him to work nine consecutive nights.
In fact he was mistaken in his belief that working nine consecutive nights is unlawful. This is because the employer’s obligation to an adult worker under the Working Time Regulations is to provide two days of rest for each 14 days worked (See Chapter 8: Hours of Work).
In any event, the EAT confirmed that the correct test is not whether a practice complained of is in fact a breach of health and safety law, but instead whether a complainant genuinely and reasonably believes it to be unlawful. Mr Joao was automatically unfairly dismissed for a reason related to health and safety.
Joao v Jurys Hotel Management UK Limited UKEAT0210/11