In Sinclair v Trackwork Limited, the Employment Appeal Tribunal considered an employee’s dismissal for causing upset and friction to staff by carrying out health and safety activities the employer required him to do.
Mr Sinclair worked for Trackwork Limited as a Track Maintenance Supervisor. Trackwork tasked him with implementing the Trackwork Safe System of Work procedure.
The new process would involve a change for Trackwork’s employees. Trackwork failed to inform staff that Mr Sinclair would be implementing this process, which created friction.
In response to the upset caused to staff by Mr Sinclair’s attempts to implement the new system of work, Trackwork dismissed Mr Sinclair.
Mr Sinclair claimed that he had been unfairly dismissed.
Dismissing an employee for carrying out health and safety activities which an employer has designated to them can amount to automatic unfair dismissal, entitling the employee to claim that they have been unfairly dismissed, regardless of how long they have been employed by the employer.
Mr Sinclair’s claim was rejected by the Employment Tribunal, which found that his dismissal was not caused by the health and safety activities he had undertaken, but rather by the way in which he had carried them out, which demoralised a loyal workforce.
Mr Sinclair appealed, and his claim went to the Employment Appeal Tribunal (EAT).
The EAT found that “the souring of relations, or the over-zealous manner in which [Mr Sinclair] carried out his duties, are not matters which can be said to be properly separable from the carrying-out of [health and safety] activities on the facts of this case; [Mr Sinclair] … was merely doing what he was instructed to do”.
The protection provided to employees designated to carry out health and safety activities seeks to guard against “mischief” including “the fact that carrying out such activities will often be resisted, or regarded as unwelcome, by other colleagues”. The EAT held that it “would wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal that was unrelated to the activity itself”. Mr Sinclair had not carried out the activities in a way that would deprive him of the protection, such as “a malicious or extraneous way that was irrelevant to the task in hand”.
Mr Sinclair’s appeal was successful.
