Sinclair v Trackwork Ltd

Where an employee has been designated to undertake health and safety activities, section 100(1)(a) of the Employment Rights Act 1996 gives broad protection for carrying out those activities. A tribunal must first establish that the statutory conditions are met and then identify the employer’s sole or principal reason for dismissal.

A reaction to legitimate safety activity, including colleagues’ resistance, upset or demoralisation, is not ordinarily separable from the activity itself. The protection may be lost where the employee acts wholly unreasonably, maliciously or irrelevantly to the task. It was not lost where the employee acted within the mandate given and merely implemented the required safety system.

The Claimant, a Track Maintenance Supervisor, was instructed to implement a new safe-system-of-work procedure. The Respondent did not tell the workforce that he had that mandate. His diligent implementation of the procedure caused friction with colleagues, who regarded his approach as over-zealous.

The Sheffield Employment Tribunal dismissed his claim for automatic unfair dismissal under section 100(1)(a) of the Employment Rights Act 1996. It found that the principal reason for dismissal was workforce upset and poor integration, rather than the carrying out of health and safety activities.

The Claimant appealed. The central issue was whether the workforce’s reaction to the legitimate implementation of the safety procedure was properly separable from the protected activity when identifying the reason for dismissal.

1. Appeal allowed. The EAT substituted a finding that the Claimant was automatically unfairly dismissed for the reason specified in section 100(1)(a) of the Employment Rights Act 1996.

2. The statutory inquiry has two stages. The tribunal must first decide whether the employee was designated to undertake health and safety activities and carried out or proposed to carry them out. It must then decide whether that was the sole or principal reason for dismissal. The first stage was indisputably met.

3. The Tribunal correctly directed itself to identify the real reason for dismissal, rather than applying a simple “but for” analysis. Its conclusion nevertheless involved an error of law. The upset, friction and soured relations on which it relied were the direct and predictable consequences of the Claimant diligently carrying out the mandated safety work.

4. On the findings made, the Claimant had not exceeded his mandate. He had not been found malicious, untruthful, extraneous or irrelevant to the task. His colleagues’ perception that his implementation was over-zealous therefore could not properly be separated from the protected activity itself. Treating the workforce’s unwelcome reaction as an independent reason would undermine the statutory protection, since new health and safety systems may predictably be resisted in an established workplace.

5. The Respondent’s good health and safety record did not preclude a finding that this particular dismissal was for a health-and-safety reason. The finding that dismissal was for a reason other than protected activity was not a permissible conclusion on the facts found.

6. The case was remitted to the Employment Tribunal to determine remedy.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal, substituted a finding of automatic unfair dismissal, and remitted the matter for remedy.
• Sheffield Employment Tribunal: Employment Judge Brain dismissed the automatic unfair dismissal claim in written reasons dated 3 December 2019.