s-100-of-the-employment-rights-act-strikes-again

This time I am giving you a little update on the interesting new case, Sinclair v Trackwork Ltd.

In this particular case, Sinclair, an employee of Trackwork Ltd, was tasked by Trackwork Ltd with implementing a new safety procedure. Trackwork Ltd did not inform its other employees that they had given this task to Sinclair, and many complaints followed with the employees raising concerns about Sinclair’s approach. Sinclair was subsequently dismissed for the ‘upset and friction’ that his activities caused. Hmm.. interesting right? What are your initial thoughts?

Well…it went all the way to the Employment Appeals Tribunal (EAT), where it was held that an employee dismissed because of ‘upset and friction’ caused to colleagues by the way in which he implemented a new safety procedure was automatically unfairly dismissed under s.100 of the Employment Rights Act (ERA) 1996.

You may or may not know that s100 of the ERA protects employees from dismissal where the reason or principal reason is that the employee carried out health and safety activities having been designated to do so. This creates a claim of automatic unfair dismissal, which is not subject to the reasonableness test for unfair dismissal. This claim is also not subject to the usual 2 year service, meaning employees can bring this type of unfair dismissal claim from day one of employment.

Carrying out health and safety activities will often be resisted and may well cause some friction amongst other employees. Therefore, it follows that if an employer could rely upon the upset caused by a legitimate health and safety activity as a reason for dismissal then this would undermine any protection this legislation provides. I think the decision would have been different had you had a maverick employee and it was the employee’s actual approach that was at issue, but that wasn’t the case here.

As I said, another very interesting case that should hopefully provide further clarification both to employees and employers on the rights that you have. If you are unsure about anything or have any queries that you would like to run past us then please do get in touch.