Employee’s dismissal for “friction” caused by health and safety activities ruled automatically unfair

An employee dismissed due to the “upset and friction” caused by the way he implemented a health and safety procedure had been automatically unfairly dismissed.

Employee claims automatic unfair dismissal on health and safety grounds

Mr Sinclair was employed as a Track Maintenance Supervisor. His employer asked him to implement a new health and safety procedure but did not tell his colleagues that it had asked him to do this. His colleagues complained about his overzealous and overcautious approach and he was subsequently dismissed for the “upset and friction caused”.

Mr Sinclair brought an employment tribunal claim for automatic unfair dismissal arguing that he had been dismissed for carrying out health and safety activities on his employer’s behalf.  

Employment tribunal rules dismissal fair 

The employment tribunal rejected his claim. It considered that it was not the health and safety activities themselves that caused his dismissal - instead, it was the way in which he carried out those activities which had caused upset and friction amongst his colleagues. 

Mr Sinclair appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal allows appeal

The Employment Appeal Tribunal allowed the appeal.

It ruled that the legislation gives broad protection to employees undertaking health and safety duties on behalf of their employer. It would completely undermine the protection provided if an employer could rely upon upset caused by legitimate health and safety activity as being a reason for dismissal that was separate and unrelated to the activity itself. An employee should be protected against dismissal when they are carrying out health and safety activities. They should only risk losing that protection if their conduct is wholly unreasonable, malicious or irrelevant to the task in hand.

This was not the case here. It was Mr Sinclair’s diligent and perceived overzealous approach to his health and safety duties that had caused relations to worsen. This was not wholly unreasonable conduct and could not be separated from his health and safety duties.   

The Employment Appeal Tribunal ruled that the dismissal was automatically unfair.

What does this mean?

It will be difficult for an employer to dismiss an employee for conduct connected with carrying out health and safety activities. Employment tribunals will be slow to treat that conduct as separate from the health and safety activities themselves.  

The purpose of the legislation is to protect employees who are asked to carry out health and safety duties for their employer. The ambit of the protection is wide. An employer will not generally be able to dismiss an employee due to the way they carry out health and safety duties except, perhaps, where their conduct is wholly unreasonable, malicious or irrelevant to the task in hand.  

The case also acts as a reminder to employers, as employees begin to return to offices and workplaces, that it is important to consult with employees or their representatives about health and safety matters.

Sinclair v Trackwork Ltd