Unfair dismissal: Health and safety comes first

In Oudahar v Esporta Group Limited, the EAT confirmed that there is a two stage test for determining whether or not a dismissal will be automatically unfair under s.100 of the Employment Rights Act 1996 (ERA), for health and safety grounds.

Summary of the caseMr Oudahar was employed as a chef by Esporta.  He refused to clean part of the kitchen floor as there were wires coming out of the wall, following some incomplete maintenance work.   Mr Oudahar’s manager asked him to do so three times, asking him to be careful as he worked and then, when he did not, he was subject to disciplinary action.  Following a reasonable investigation, Mr Oudahar was dismissed for insubordination and breach of the food hygiene rules.  On appeal, the EAT confirmed that, when determining whether a dismissal is automatically unfair, the ET must decide:  1. whether or not s.100 of the ERA is engaged - did the employee “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from danger...”?; and 2. what the sole or principle reason for dismissal was.  Therefore, in cases such as this, the employer must consider the employee’s state of mind and why he acted as he did.  In this case, Mr Oudahar understood there to be serious danger and acted accordingly.  It does not matter whether or not the employer agrees with the employee’s analysis of the level of risk. 

What does this mean?So long as the employee behaved honestly and reasonably in the circumstances (on an objective basis), the ERA protection is likely to apply.  If, as in this case, the sole or principle reason for dismissal was because of the steps that the employee took as a result of serious and imminent danger, then the dismissal will be automatically unfair.