In the case of Sinclair v Trackwork Limited, the Employment Appeal Tribunal (EAT) ruled that an employee was automatically unfairly dismissed under Section 100(1)(a) of the Employment Rights Act 1996 (ERA 1996) in circumstances where his implementation of new health and safety procedures caused upset and friction within the workforce. The central issue was whether the upset and friction caused could be separated from the implementation of the procedures itself for the purposes of a dismissal. The EAT ruled that this was not one of those cases and that the employee had acted reasonably and diligently in carrying out his duties and the unhappiness of his colleagues was something that was beyond his control.
The Claimant, Mr Sinclair, was a Track Maintenance Supervisor for Trackwork Limited. He had been employed by the company since 2018 and had recently been tasked with implementing a new health and safety procedure, known as the Trackwork Safe System of Work procedure. It was noted in the case that the employer had failed to effectively notify the workforce that Mr Sinclair had been tasked with this and what the new health and safety procedure entailed. As a result, the workers began to question what Mr Sinclair was doing and the way that he was doing it, complaining that his approach was “overcautious and somewhat zealous”. Following several complaints made by the workers, Mr Sinclair was dismissed for the upset and friction that his activities had caused in the workplace. Mr Sinclair soon brought a claim for automatic unfair dismissal under Section 100(1)(a) of the ERA 1996. This affords protection where an employee is dismissed on health and safety grounds. However, the Employment Tribunal dismissed his claim. The judge found that it was the way Mr Sinclair had gone about carrying out his activities that had caused the divisions in the workforce (not the activities itself) and in these circumstances it was not unfair that he was dismissed for this.
The EAT disagreed, stating that “the souring of relations, or the over-zealous manner in which the Claimant carried out his duties, are not matters which can be said to be properly separable from the carrying-out of those activities.” In other words, Mr Sinclair was put in this position by his employer and was simply following orders and that his conduct was not so unreasonable, malicious or irrelevant to allow the court to separate this conduct from the activities itself. The EAT accepted that there were cases where a separation was possible but this was not one of them. In fact, Mr Sinclair performed his duties diligently and the reaction of his colleagues was something that was beyond his reasonable control. The EAT noted that new health and safety directives are often met with resistance due to the increased workloads or education and that the protection offered under Section 100(1)(a) would be significantly undermined if an employee could be dismissed every time that an implementation of health and safety procedures caused upset or dismay.
The EAT accepted the appeal and found that Mr Sinclair was automatically unfairly dismissed.
This case illustrates the far reaching nature of the health and safety provisions in the ERA 1996 and the courts willingness to interpret them in the context of today’s working landscape. This is particularly important given the current pandemic and should give confidence to employees who are tasked with implementing measures or are simply raising health and safety concerns. Where there is a health and safety element, employers should tread carefully and perhaps take expert legal advice.