R J Bryce v Active Security Solutions Limited & Anor

For Employment Rights Act 1996, section 44(1)(a), an employee is not designated to undertake health and safety activities merely because ordinary duties incidentally involve health and safety considerations. Designation requires a distinct health and safety function beyond normal duties.

A procedural adjustment is material on appeal only where its refusal caused actual unfairness. The appellant must identify a material matter on which disability prevented a fair response and explain the further submission that could have been made. The concepts of unfavourable treatment under section 15 of the Equality Act 2010 and detriment under section 44 are distinct, although that point was academic where section 44(1)(a) did not protect the employee.

The claimant, a licensed door supervisor employed by the first respondent and assigned to the second respondent's premises, was sent home after an incident involving police attendance. He brought several employment claims, including a complaint under section 44 of the Employment Rights Act 1996.

The Employment Tribunal at Birmingham struck out the section 44 complaint, holding that he was not designated to undertake health and safety activities and that being sent home was not a detriment. It also struck out other complaints, made deposit orders on others, and allowed a holiday-pay claim to proceed against the first respondent.

The claimant appealed against the refusal of a requested written-submissions adjustment, the finding on designation, and the finding on detriment.

1. Appeal refused. The refusal to permit a written response after the hearing did not render the process unfair. The Tribunal had considered the claimant's disabilities, the prior written notice of the respondents' applications, and the additional time given for oral submissions. To establish material unfairness, the claimant had to identify a material point not foreshadowed in the written material, a disability-related inability to respond fairly to it, and the further submission he would have made. He did not do so in respect of the claims other than the section 44 complaint.
2. The Tribunal correctly followed Castano v London General Transport Services Ltd, [2020] IRLR 417. Section 44(1)(a) of the Employment Rights Act 1996 concerns an employee given a particular and distinct function of preventing or reducing workplace health and safety risks. Health and safety considerations arising incidentally in the ordinary role of a door supervisor do not themselves amount to designation. The earlier EAT decision was not plainly wrong, and the Tribunal was bound by it.
3. The Tribunal's treatment of detriment was erroneous in principle. It appeared to transpose the analysis of unfavourable treatment and justification under section 15 of the Equality Act 2010 to section 44. Detriment requires a distinct analysis, including the employee's perspective and that of a reasonable employee. However, the error was academic because the claimant was not protected by section 44(1)(a). Had the designation issue succeeded, the section 44 complaint would have been remitted.
4. The claimant had, through counsel on appeal, been fully heard on the only potentially material written-submissions point. Viewed overall, the process was fair and no ground justified interference with the Tribunal's judgment.

• Employment Appeal Tribunal: Appeal dismissed: [2026] EAT 16.
• Employment Tribunal, Birmingham: Judgment dated 7 February 2023. The Tribunal struck out the section 44 complaint and certain other complaints, made deposit orders in respect of two claims, and permitted the holiday-pay claim to proceed against the first respondent.