Employment Rights Act 1996, section 100

Health and safety cases

Part X Unfair dismissal

(1)An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b)being a representative of workers on matters of health and safety at work or member of a safety committee—

(i)in accordance with arrangements established under or by virtue of any enactment, or

(ii)by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c)being an employee at a place where—

(i)there was no such representative or safety committee, or

(ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2)For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3)Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.

Definitions used in section 100 3

employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act

Cases considering section 100 29

Darren Rodgers v Leeds Laser Cutting Limited

[2022] EWCA Civ 1659 · 20 December 2022Interprets

The judgment treats section 100 as creating automatic unfair-dismissal protection in specified health and safety cases. The appeal concerned the application of subsection (1)(d) to a Covid-19 workplace-danger claim. (see paras [2], [15]-[22]) The judgment interprets section 100(1)(d) purposively. Protection applies where an employee reasonably believes that serious and imminent danger exists at the workplace, whether or not the danger is exclusive to that workplace, and leaves or refuses to return because of it. (see paras [17]-[22], [59]) The provision is identified as an alternative automatic unfair-dismissal ground, but the appellant abandoned reliance on it before the Employment Appeal Tribunal. The Court of Appeal did not decide its substantive application. (see paras [2], [4])

Akintola v Capita Symonds Ltd

[2010] EWCA Civ 405 · 25 March 2010

The court confirms that the tribunal was entitled to find that the claimant had not shown circumstances of danger which he reasonably believed to be serious and imminent. The finding defeated reliance on the health-and-safety exception to the qualifying-period rule. (see paras [6]-[7], [17]-[18])

Abraham Goldstein v Marie-Pierre Herve

[2024] EAT 35 · 14 March 2024

A dismissal is automatically unfair where the reason is the employee’s protected refusal to return to the workplace in circumstances of serious and imminent danger. The tribunal was entitled to find that the respondent’s repudiatory conduct was prompted by that refusal. (see paras [60]; [67])

9 more judgments, and what each says about section 100, are in the case-law panel in the full Act.