Oudahar v Esporta Group Ltd

Employment Rights Act 1996, section 100(1)(e), requires a two-stage inquiry. First, the tribunal must decide whether the employee reasonably believed that circumstances of danger were serious and imminent and whether he took, proposed to take, or communicated appropriate protective steps. Secondly, it must decide whether that conduct was the sole or principal reason for dismissal.

The employer’s disagreement with the employee’s assessment of the danger or the appropriateness of his steps is irrelevant. The statutory protection depends on whether the employee falls within the provision’s criteria, not on whether the employer accepts his account. The appeal was remitted for those factual findings.

The claimant, a chef, refused to mop an area of a kitchen because he said exposed electrical wires and other maintenance conditions created a health and safety risk. The respondent investigated and preferred evidence that the area was safe. It dismissed him for insubordination and disregard of food hygiene.

The Employment Tribunal found that the principal reason for dismissal was the refusal to follow the instruction, but held that section 100(1)(e) was not engaged because the dismissing manager had genuinely concluded that no danger or protected act existed. The central issue on appeal was whether that approach was legally correct.

1. Appeal allowed and case remitted. The Employment Tribunal had applied the wrong legal analysis and had failed to determine whether the statutory criteria were factually satisfied. The matter was remitted to the same tribunal for further submissions and findings.
2. Section 100(1)(e) requires a two-stage approach. First, the tribunal must determine whether there were circumstances of danger which the employee reasonably believed to be serious and imminent, and whether he took or proposed to take appropriate steps to protect himself or others. In light of Balfour Kilpatrick Ltd v Acheson, the inquiry may also concern appropriate steps to communicate the circumstances to the employer. Section 100(2) directs attention to all the circumstances, including the employee’s knowledge and the facilities and advice available.
3. Secondly, if those criteria are established, the tribunal must determine whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take those steps. If so, the dismissal is automatically unfair, subject to section 100(3).
4. The employer’s disagreement with the employee about the existence of danger or the appropriateness of the steps is irrelevant. Sections 100(1)(c)–(e) focus on the employee’s conduct and state of mind; they do not require employer agreement. The Tribunal therefore erred in treating the dismissing manager’s preference for contrary evidence as conclusive and in failing to resolve the underlying factual issues.
5. The Tribunal had correctly found the principal reason for dismissal, but it still had to decide whether the claimant’s refusal fell within section 100(1)(e).

• Employment Appeal Tribunal: allowed the appeal against the judgment of the Employment Tribunal sitting at London Central, dated 27 July 2010, and remitted the matter to the same tribunal.