Unfair dismissal in health and safety

Protection from dismissal

Section 100  and Section 44 of the Employment Rights Act 1996 give you protection from dismissal for health and safety reasons. 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.

If you are dismissed for health and safety reasons, it would be an automatically unfair dismissal. Agency workers or self-employed consultants do not qualify.

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.
  • It is also 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 employment tribunal.

Resources available

Grievance cover   cilinniesaysebook121515b   Schedule of loss cover   Employee Rep cover 1   Health and safety dismissal cover

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Legal protection

The law gives two types protection;

 

  1. Employees whose role includes designated health and safety duties, fopr 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.
  1. 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.  

What is automatically unfair dismissal?

In certain situations dismissal by an employer will be treated as being automatically unfair. See Automatically Unfair Dismissals.  Usually in a dismissal case, the employment tribunal will consider whether your employer acted reasonably and fairly. In automatic unfair dismissal, the employment tribunal will not consider whether your employer acted fairly in all the circumstances. 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 tribunal to find that you have been unfairly dismissed.

 

Dismissal for asserting a statutory right

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.

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.

An employment tribunal can make an award of compensation where it finds that you have been unfairly dismissed on these grounds. Unlike automatically unfair dismissal, this award is subject to a statutory limit.

 

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Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

 

Case Study

Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a Christmas party fight with a monkey specialist over their love rivalry for a llama keeper was unfairly dismissed, however she received nothing in compensation.  The employment tribunal said that two zookeepers who got into a fight at London Zoo’s Christmas party should have received the same disciplinary sanction. At London Zoo’s Christmas party, zookeeper Ms Westlake got into a fight with a colleague, Ms Sanders. The fight appeared to originate over another zookeeper Mr Davies, Sanders’ former boyfriend who was... Read More
Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a…Meerkats v Monkeys
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