During the pandemic, issues of health and safety in every workplace have come to the fore.  A recent case relating to pre-pandemic issues shows how those involved in health and safety activities have additional employment rights.

In the case of Sinclair v Trackwork Ltd, Mr Sinclair’s role required him to implement a new health and safety procedure. Unfortunately, Mr Sinclair’s manager didn’t tell his colleagues about the changes which he had asked to be implemented, nor had he told Mr Sinclair how he wanted the changes to be implemented.  Mr Sinclair’s colleagues were not happy with the changes and they raised concerns with management.  Trackwork then dismissed Mr Sinclair after only two months employment for causing “upset and friction” with his colleagues as a result of his “overcautious and somewhat zealous” implementation of changes.

Mr Sinclair alleged that he had been automatically unfairly dismissed as the reason or principal reason for his dismissal was that he had carried out designated health and safety activities.  However, the tribunal found that the upset within the workforce had arisen due to Mr Sinclair’s methodology, rather than the fact that he was implementing changes to health and safety.  It was therefore the manner in which he had carried out his designated duties, rather than the activities themselves, which led to his dismissal and his claims were dismissed. 

The EAT upheld Mr Sinclair’s appeal on the basis that the scope of employment protection for those carrying out health and safety activities is broad.  Mr Sinclair had carried out his duties as instructed, diligently and within the terms of his mandate.  Changes in working practices are often considered unwelcome and can give rise to resistance.  The EAT found that the protection provided for those carrying out health and safety activities would be undermined if an employer could dissociate upset on the part of the workforce from those legitimate activities.  As Mr Sinclair had not conducted himself unreasonably, maliciously or outside his remit, he retained the protection and the EAT therefore held that he had been unfairly dismissed.

As staff return to offices, employers will need to ensure that they put in place (if they haven’t done so already) the appropriate measures to protect health and safety.  By consulting with staff, involving them in risk assessments and communicating proposed changes effectively, resistance to new procedures and upset caused should be minimised.   This in turn should mitigate the risk if you ever need to discipline or terminate the employment of someone who has been tasked with or has complained about matters of health and safety previously.

Finally, the additional protection of employees from being subjected to detriment for health and safety-related conduct is being extended to workers in Great Britain with effect from 31 May 2021.  For workers, detriment includes the termination of their engagement as they (unlike Mr Sinclair) cannot claim automatically unfair dismissal.

If you need guidance on issues relating to a return to the workplace as COVID restrictions ease, including continued homeworking and vaccination, please contact the team at Synchrony Law for details of how we can help you.

26 May 2021