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Dismissal for health and safety reasons is an automatically unfair reason. You don’t need two years service to claim automatically unfair dismissal. You can sue from your first day at work. There are several automatically unfair reasons for dismissal. It works like this. Usually in a dismissal case, the Employment Tribunal (ET) will go through the following steps:
1 Check whether the reasons for your dismissal falls within one of the potentially fair reasons for dismissal in Employment Rights Act 1996 (ERA 1996) section 98 (1)(b) and 98(2).
2 If it does, consider whether your employer acted reasonably and fairly in dismissing you for that reason.
In automatically unfair dismissal, if the ET finds that your employer dismissed you for an automatically unfair reason (such as health and safety), they will stop right there and not move on to point 2 where they consider whether your employer acted fairly in all the circumstances.
This is a very important point because if you are able to prove that the reason for your dismissal was for one of the automatically unfair reasons, that on its own will be enough for the ET to find that you have been unfairly dismissed. [see How to fight a Health and Safety dismissal]
The law gives two types protection;
1 Employees whose role includes designated health and safety duties, for example safety officers and fire marshals as well as those who represent their colleagues on health and safety. If you fall into this category, you are entitled to minimum compensation, regardless of your actual losses.
2 All employees including;
– those who are involved in the election of health and safety representatives
– those who bring harmful or potentially harmful situations to their employer’s attention,
– those who walk out or refuse to return to work in certain circumstances, those who take certain steps to protect themselves or others in the face of imminent danger
There is no qualifying period of service before you can bring a health and safety dismissal claim. This means that you are protected from your first day of employment.
Section 100 and Section 44 of the Employment Rights Act 1996 (ERA 1996) give you protection from dismissal for health and safety reasons. Agency workers or self-employed consultants do not qualify. The EU Workplace Health and Safety Directive (89/391/EEC) sets out general principles on measures to protect the safety and health of workers while at work. Even though we have Brexited, it is still a good point of reference to solidify your claim.
S100 says that you will be automatically unfairly dismissed if your employer dismisses you (or selects you for redundancy when others in similar circumstances are not selected) for any one the following reasons;
– You carried out or proposed to carry out any activities which you were appointed to carry out by their employer, in connection with preventing or reducing risks to health and safety at work.
– You performed or proposed to perform any functions that you have been given as an acknowledged health and safety representative or committee member.
– In a situation where there was no health and safety representative or committee, you brought a concern about circumstances at work which you reasonably believed were harmful to health or safety;
– In a situation of serious and imminent danger which you could not reasonably be expected to avert, leave or propose to leave the workplace or any dangerous part of it.
– In a situation of serious and imminent danger you refuse to return to the workplace.
– In circumstances of danger which you reasonably believe to be serious and imminent, you take or propose to take appropriate steps to protect yourself and other people from the danger.
This means that when you write your claim, you must state the precise health and safety reason or reasons for which you believe you were dismissed, as laid out above. So, if we take the last point above as an example, your claim should state;
“I was dismissed because in circumstances of danger which I reasonably believed to be serious and imminent, I took (or proposed to take) appropriate steps to protect myself (and other people) from danger”
You then state what the circumstances were, why you believed the circumstances to be dangerous, the steps you took and what your employer did to you after.
Additionally, it is unlawful for your employer to subject you to any other detrimental treatment on any of these grounds. This means that even if you are not dismissed, but treated badly under any of these grounds, you will have a claim in the ET.
In order to bring your claim under ERA 1996 section 100(1)(c) you must show the Employment Tribunal that you:
– brought to your employer’s attention
– by reasonable means
– circumstances connected with your work
– which you reasonably believed were harmful or potentially harmful to health or safety
In Joao v Jurys Hotel Management UK (2011), Mr Joao was a night porter with Jurys Hotel. He brought a claim alleging automatic unfair dismissal because his employer dismissed him when he brought to his employer’s attention circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. The circumstances that he reported were working practices that were in fact lawful, and the ET dismissed his claim for these reasons. On appeal, the Employment Appeal Tribunal (EAT) said that the fact that the circumstances were lawful does not defeat the claim, because the claimant may nonetheless reasonably believe that the practices were harmful or potentially harmful to health or safety even if they are lawful.
What this means is that you don’t need to prove that you reasonably believed that the health and safety contravention was unlawful. You just need to show the ET that you reasonably believed that what was happening was ‘harmful or potentially harmful to health or safety’, whether or not it was lawful.
The other right that applies to health and safety dismissals is dismissal for asserting a statutory right in S104 of the Employment Rights Act 1996. A statutory right is any right under the Employment Rights Act 1996. It is automatically unfair if your employer dismisses you for the following reasons;
– In a situation where you have made a claim in an employment tribunal or court to enforce a relevant statutory right.
– In a situation where your employer has infringed your relevant statutory right.
An ET can make an award of compensation where it finds that you have been unfairly dismissed on these grounds. Unlike standard automatically unfair dismissal, this award is subject to a statutory limit.
Citizens Advice – Automatic Unfair Dismissal: Health and Safety
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