For obvious reasons, the issue of health and safety in the workplace has been front and centre over the last year. So, the recent case of Sinclair v Trackwork Ltd provides a timely reminder of some of the difficult legal problems that can arise when employment law and health and safety obligations collide.

What’s this case about?

On joining Trackwork back in October 2018, Mr Sinclair was tasked with implementing new safety measures aimed at ensuring the company’s compliance with Network Rail’s processes and procedures. Unfortunately, Mr Sinclair’s efforts did not receive an entirely positive reception. In fact, many of his colleagues formed the view that the new boy was being ‘overcautious and somewhat zealous’ in his approach. All in all, Mr Sinclair quickly rubbed a lot of his colleagues up the wrong way and their dissatisfaction came to the attention of management. Having received various complaints about Mr Sinclair’s approach, Trackwork decided to dismiss in December 2018, only 2 months after he had joined.  

Normally, an employee with less than 2 years’ continuous service cannot bring an unfair dismissal claim against their employer. However, Mr Sinclair argued that the reason (or principal reason) for his dismissal was the health and safety duties he was carrying out. If this was found to be the case, then under section 100 of the Employment Rights Act 1996 (ERA), his dismissal would be automatically unfair, regardless of his length of service.

What did the Tribunals say?

At the Employment Tribunal hearing, Trackwork successfully argued that it was not so much that Mr Sinclair had been dismissed for health and safety reasons, but more the fact that his actions (or the way in which he carried out his duties) had resulted in an unhappy and dissatisfied workforce. His dismissal, therefore, was found to be fair.  However, the Employment Appeal Tribunal formed a different view. The EAT acknowledged that there might be exceptional cases where the manner in which an employee performs his health and safety duties could be held to be distinct from the duties themselves, such that the former could be grounds for a fair dismissal.  However, this was not such a case. Whilst it may have been true that Mr Sinclair was doing what proved to be a very unpopular job, by their very nature, health and safety measures can produce a negative response. The EAT observed that the law had been drafted to protect those performing safety-critical roles precisely because they can otherwise be at greater risk of poor treatment or persecution. The EAT went on to conclude that Mr Sinclair should have been afforded the special protected granted to those performing health and safety activities. As a result, despite his very short service, the EAT overruled the Employment Tribunal’s decision and found Mr Sinclair’s dismissal to be unfair.

Do you need to tread carefully?

This case provides a timely reminder of the law in this area. Employers often assume that in the first two years of service, they are entirely free to dismiss their staff, without any prospect of a claim. This is not necessarily true.

Before dismissing any member of staff, however short their service, it is important to evaluate the risks. Could they claim that the dismissal is discriminatory; discrimination claims can be brought at any stage of the employment relationship, including before employment has even begun? Alternatively, could the reason for dismissal be said to be one of the automatically unfair reasons, which can result in successful unfair dismissal claims whenever the dismissal takes place? These questions always need to be considered and answered, regardless of how short the employee’s employment may be.

If you are having to consider dismissing an employee with less than 2 years’ service and need our help in assessing the risks, please get in touch.

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