Castano v London General Transport Services Ltd

An employee is not designated for the purposes of sections 44(1)(a) and 100(1)(a) merely because ordinary duties, contractual terms, licensing requirements or training require attention to health and safety. The protection concerns an employee specifically designated to undertake health-and-safety activities beyond ordinary job duties.

For sections 44(1)(c) and 100(1)(c), an employee’s place of work is the location at which the job is based. It does not become each location visited while performing the role. The alternative protection where access to a representative is impracticable requires a real inability reasonably to raise the matter through the workplace representative. Employment Rights Act 1996

The claimant, a bus operator based at Putney bus garage, alleged health-and-safety detriment and automatic unfair dismissal after raising concerns connected with a controller’s contact while he was driving. As he lacked the qualifying service for an ordinary unfair-dismissal claim, he relied on sections 44 and 100 of the Employment Rights Act 1996.

The Employment Tribunal struck out the claims under sections 44(1)(a) and (c) and 100(1)(a) and (c) as having no reasonable prospect of success. The claimant appealed, contending that his licence and contractual duties made him a designated health-and-safety employee; alternatively, that his bus or route was his workplace; or that access to the garage representative had not been reasonably practicable.

1. Appeal dismissed. The Employment Tribunal made no error of law in striking out the health-and-safety detriment and dismissal claims. It had assumed the claimant’s case at its highest, so no factual dispute requiring trial prevented strike-out.

2. Sections 44(1)(a) and 100(1)(a) of the Employment Rights Act 1996 protect an employee specifically designated by the employer to carry out activities preventing or reducing workplace health-and-safety risks. The claimant’s PCV licence, driver training, contractual duties to report accidents and defects, and general duty to safeguard others did not confer that status. Those were ordinary health-and-safety obligations arising from his role, not designation to perform the distinct function of a health-and-safety representative.

3. Von Goetz v St George’s Healthcare NHS Trust was not authority for dispensing with the designation requirement. It confirmed that protections under other limbs may extend to risks to persons other than fellow workers, but it concerned sections 100(1)(c) and (e), rather than the specific protection for a designated employee. The Framework Directive’s reference to workers’ representatives with specific responsibility supported the Tribunal’s construction.

4. The claimant’s place of work for sections 44(1)(c)(i) and 100(1)(c)(i) was Putney bus garage, the location at which his employment was based. Driving a bus away from that base did not make the bus or route his statutory workplace. Since a designated representative was present at the garage, this limb could not apply.

5. The alternative case under sections 44(1)(c)(ii) and 100(1)(c)(ii) was neither properly advanced below nor arguable. The claimant had raised concerns with managers at or through the garage. Nothing suggested that it was not reasonably practicable to raise them with the designated representative there.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the strike-out of the claimant’s claims under sections 44 and 100 of the Employment Rights Act 1996.
• South London Employment Tribunal: on 1 May 2018, with judgment sent on 24 May 2019, struck out the health-and-safety detriment and automatic unfair-dismissal claims as having no reasonable prospect of success.