Heigh-ho heigh-ho it’s back to work we go…

7 key considerations for Health and Safety casesin Employment Tribunals.

Mr David B. JonesBarrister

Choose your tipple…

What are we going to cover…

1. Background and recent trends

2. Health and Safety Detriment (s.44 ERA 1996)

3. Health and Safety Dismissal (s.100 ERA 1996)

4. Whistleblowing (s.43B ERA 1996)

5. Constructive dismissal (s.95(1)(c) ERA 1996)

6. Who does the law apply to?

7. Going forward

Background

Old but new…

Familiar feel to H&S provisions but rarely used in practice.

Statutory provisions but limited Appellate authorities.

Why are things about to change?

Some good news!!!

Health and Safety Detriments.44(1) Health and safety cases.

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee

carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee—

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consul tation with Employees)

Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),

(c) being an employee at a place where—

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those

means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were

harmful or potentially harmful to health or safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been

expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of

work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect

himself or other persons from the danger.

Health and Safety Detriment contd.s.44(2) and (3) Health and safety cases.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the

circumstances including, in particular, his knowledge and the facilities and advice available to him at the time .

(3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have

been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

The purpose of s.44 ERA 1996 is to protect individuals from

detriment(s) for having taken specified health and safety

related action. Note the provisions that apply to

representatives differ from those of ‘employees’.

Health and Safety dismissalss.100(1) Health and safety cases.

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the

dismissal is that—

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee

carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee—

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c) being an employee at a place where—

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those

means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially

harmful to health or safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been

expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of

work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect

himself or other persons from the danger.

Health and Safety Dismissals contd.s.100(2) and (3) Health and safety cases.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the

circumstances including, in particular, his knowledge and the facilities and advice available to him at the time .

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly

dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable

employer might have dismissed him for taking (or proposing to take) them.

The purpose of s.100 ERA 1996 is to protect employees from

dismissal for having taken specified health and safety related

action. Note that a dismissal under s.100 ERA 1996 is

automatically unfair.

EC Directive 89/391/EEC (12 June 1989)

Objective

The aim of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work. It applies to all sectors of activity,

both public and private, except for specific public service activities, such as the armed forces, the police or certain civil protection services.

It is of fundamental importance as it the basic safety and health legal act which lays down general principles concerning the prevention and protection of

workers against occupational accidents and diseases. It contains principles concerning the prevention of risks, the protection of safety and health, the

assessment of risks, the elimination of risks and accident factors, the informing, consultation and balanced participation and training of workers and their

representatives.

On the basis of this "Framework Directive" a series of individual directives were adopted. The Framework Directive with its general principles continues to

apply in full to all the areas covered by the individual directives, but where individual directives contain more stringent and/or specific provisions, these

special provisions of individual directives prevail.

Definitions

Definition of the terms “worker”, “employer”, “workers' representative with specific responsibility for the safety and health of workers” and “prevention”.

EC Directive 89/391/EEC (12 June 1989) contd.

Contents

Directive contains basic obligations for employers and workers. Nevertheless, the workers' obligations shall not affect the p rinciple of the responsibility of the

employer. It is the employer's obligation to ensure the safety and health of workers in every aspect related to work and he may not impose financial costs to

the workers to achieve this aim. Alike, where an employer enlists competent external services or persons, this shall not discharge him from his

responsibilities in this area.

The general principles of prevention listed in the directive are the following:

- avoiding risks

- evaluating the risks

- combating the risks at source

- adapting the work to the individual

- adapting to technical progress

- replacing the dangerous by the non- or the less dangerous

- developing a coherent overall prevention policy

- prioritizing collective protective measures (over individual protective measures)

- giving appropriate instructions to the workers

EC Directive 89/391/EEC (12 June 1989) contd.Employers’ and workers' obligations

The employer shall:

- evaluate all the risks to the safety and health of workers, inter alia in the choice of work equipment, the chemical substances or preparations used, and the fitting-out of

work places ;- implement measures which assure an improvement in the level of protection afforded to workers and are integrated into all theactivities of the undertaking and/or

establishment at all hierarchical levels;

- take into consideration the worker's capabilities as regards health and safety when he entrusts tasks to workers;- consult workers on introduction of new technologies;

- designate worker(s) to carry out activities related to the protection and prevention of occupational risks;- take the necessary measures for first aid, fire-fighting, evacuation of workers and action required in the event of serious and imminent danger

- keep a list of occupational accidents and draw up and draw up, for the responsible authorities reports on occupational accidents suffered by his workers;

- inform and consult workers and allow them to take part in discussions on all questions relating to safety and health at work;- ensure that each worker receives adequate safety and health training.

The worker shall:

- make correct use of machinery, apparatus, tools, dangerous substances, transport equipment, other means of production and personal protective equipment;- immediately inform the employer of any work situation presenting a serious and immediate danger and of any shortcomings in the protection arrangements;

- cooperate with the employer in fulfilling any requirements imposed for the protection of health and safety and in enabling him to ensure that the working environment and working conditions are safe and pose no risks.

Health surveillance should be provided for workers according to national systems. Particularly sensitive risk groups must be protected against the dangers which specifically affect them.

Balfour Kilpatrick Limited v Mr Acheson and Others [2003] IRLR 683

s.44 and s.100 ERA 1996 implement the Directive in the UK.

Employment Tribunals are therefore required to adopt a purposive

construction of the provisions compatible with the protections outlined in

the Directive.

Joao v Jurys Hotel Management UK Limited UKEAT/0210/11/SM

Employers may not get any warning of action employees intend to/do take.

There is no requirement for employees to consult before taking unilateral

action.

No defence of legal justification (e.g. what was occurring at the employers

premises was ‘legal’).

Serious AND imminent danger

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

Regulation 3(1):

The emergency period and review of need for restrictions

“3. (1) For the purposes of these Regulations, the “emergency period”—

(a) starts when these Regulations come into force, and

(b) ends in relation to a restriction or requirement imposed by these

Regulations on the day and at the time specified in a direction

published by the Secretary of State terminating the requirement or

restriction…”

Serious AND imminent danger contd.

The serious and imminent threat declaration by the PM on 10 February 2020

is likely to enable employees to claim that the threat of COVID-19 is serious

and imminent.

Risk of contracting COVID-19 is capable of being “danger”.

Accepted that risk of COVID-19 is serious but is the threat imminent? Did the

employee have a reasonable belief that COVID-19 posed an imminent

danger?

This will be the ‘battleground’.

Employee’s belief

Subjective question measured by objectivity!

The employer’s opinion doesn’t matter. The question is what the employee

reasonably believed at the time he/she took action…

Oudahar v Esporta Group Limited [2011] ICR 1406

“27. In our judgment the mere fact that an employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within section 100(1)(e).” (HHJ Richardson)

Employee’s belief contd.

Hamilton v Solomon and Wu Limited UKEAT/0126/18/RN

“17. In an appropriate case, there is an argument to be made that there are

three, not two, stages in considering a claim under section100(1)(d)

and that Oudahar identifies the second and third. On a plain reading of

the statute the first question appears to be whether there are, in fact,

“circumstances of danger” which is an objective test. The second

question then considers the Claimant’s reasonable belief in whether

those dangerous circumstances are serious and imminent and which

he could not reasonably be expected to avert, and the third, the reason

for dismissal.” (HHJ Stacey)

Danger

“Circumstances of danger” is a phrase of wide import.

(Balfour – purposive construction)

It does not just relate to the workplace itself.

What about the journey to/from work?

Harvest Press Limited v McCaffrey [1999] IRLR 778

Danger contd.

Potential danger is not imminent.

ABC News Intercontinental Inc v Gizbert UKEAT/0160/06/DM

- What would happen in a care home setting that decided to accept COVID+

patients? Would a Carer who then refused to go to work and was

subsequently made redundant have a claim under s.100(1)(d)?

Arguably, no!

Subsection (3) Defence

Applies to both detriment (s.44) and dismissal (s.100) claims brought under

ss(1)(e).

“…he shall not be regarded as unfairly dismissed if the employer shows

that it was (or would have been) so negligent for the employee to take

the steps which he took (or proposed to take) that a reasonable

employer might have dismissed him for taking (or proposing to take)

them.”

Tip: Employers who have stringent H&S procedures in place and follow

them, provide suitable PPE and communicate with their employees will

have a stronger argument if dismissing an employee for negligence

than those that don’t!

Automatic unfair dismissal

No period of qualifying service necessary (s.108(3)(c) ERA 1996).

Compensatory award is uncapped (s.124(1A) ERA 1996).

Damages

As per s.49(2) ERA 1996:

“….the amount of the compensation awarded shall be such as the tribunal

considers just and equitable in all the circumstances having regard to—

(a) the infringement to which the complaint relates, and

(b) any loss which is attributable to the act, or failure to act, which

infringed the complainant’s right.”

ITF

As it stands, ITF assessed is the same way as any discrimination claim.

Timis v Osipov [2018] EWCA Civ 2321

“27. Although, as noted above, the compensation provisions of Part V and Part X are in most respects identical, I should note one divergence which has emerged in the case-law. It has from the early days of the unfair dismissal legislation been held, and it was confirmed by the House of Lords in Dunnachie v Kingston-upon-Hull Council [2004] UKHL 36, [2005] 1 AC 226, that the reference to "loss" in what is now section 123 (1) refers only to pecuniary loss and thus excludes injury to feelings. However, there is EAT authority, reviewed by HHJ Ansell in Virgo Fidelis Senior School v Boyle [2004] UKEAT 0644/03, [2004] ICR 1210, to the effect that "loss" in section 49 (2) has a wider meaning which does extend to injury to feelings; and such awards are alm ostinvariably made in whistleblower cases. For reasons which will appear, the existence of that distinction is relevant to the i ssues which we have to decide. Mr Carr submitted that it was questionable whether the Virgo Fidelis line of authority is correct, and he drew attention to the recent decision of this Court in Gomes v Higher Level Care Ltd [2018] EWCA Civ 41, [2018] IRLR 440, which concerned similar provisions in the Working Time Regulations 1998. He did not, however, invite us to decide the point, and both Mr Stilitz and Ms Jolly submitted that we should not do so: it had not been raised in either the ET or the EAT (and the ET had indeed made an award of injury to feelings (see para. 39 below)). In those circumstances we heard no detailed argument, and we should proceed on the assumption that Virgo Fidelis was correctly decided.” (Underhill LJ)

Whistleblowing

Can a refusal to work and/or complaints about the working environment

amount to a Protected Disclosure?

Yes.

Any communication will amount to a Protected Disclosure, and entitle an

individual to protection as a whistleblower, where the usual cumulative test

has been satisfied.

Whistleblowing – the cumulative test

Disclosure of information

There must be a disclosure of information (s.43B(1) ERA 1996). This means

that an individual should do more than simply articulate an allegation; the

facts underpinning their concern should be explained. There is no limitation

on the method of disclosure. It can be oral or in writing or the information can

be expressed by way of a photograph or video recording.

Public interest

The individual must have a reasonable belief that the disclosed information is

made in the public interest (s.43B(1) ERA 1996).

Whistleblowing contd.

Reasonable belief

The individual must have a reasonable belief that the disclosed information

tends to show one or more of six specified categories of risk. The belief does

not have to be correct.

Whistleblowing contd.

In a COVID-19 context, the following will be most relevant:

- A person has failed, is failing or is likely to fail to comply with any legal obligation to which

they are subject (s.43B(1)(b) ERA 1996)

- The health and safety of any individual has been, is being or is likely to be endangered

(s.43(1)(d) ERA 1996). (N.B. This provision dovetails with regulation 14(2) Management of

Health and Safety at Work Regulations 1999 which requires employees to report certain

concerns they may have about health and safety issues.)

- Information has been concealed or is likely to be deliberately concealed which tends to

show that a person has failed, is failing or is likely to fail to comply with any legal obligation

to which they are subject or that health and safety of any individual has been, is being or is

likely to be endangered (s.43B(1)(f) ERA 1996).

Whistleblowing contd.

Recipient of the information

A Protected Disclosure will only occur where the relevant information is disclosed to certain

people or bodies.

The individual’s employer is an appropriate recipient (s.43C(1)(a) ERA 1996).

Don’t forget about the extended definition of ‘worker’ in whistleblowing cases as per s.43K

ERA 1996.

Constructive dismissal

Implied term(s):

- Employer will take reasonable steps to ensure the safety of their employees

- Mutual trust and confidence

Malik v Cenkos Securities plc UKEAT/0100/17/RN

“An employer shall not without reasonable or proper cause, conduct itself in a manner

calculated or likely to destroy or seriously damage the relationship of confidence and trust

between employer and employee.”

“Overarching obligation” as per Johnson v Unisys [2003] IRLR 279.

Constructive dismissal contd.

Whether or not there has been a fundamental breach of contract is an objective question. No

band of reasonable responses test applies (Bournemouth University Higher Education

Corporation v Buckland [2010] ICR 908).

What if an employer retaliates against an employee for exercising his/her rights under s.100

ERA 1996 and doing a protected act?

Automatically unfair constructive dismissals! (Skelton v Artel Services Limited (1999))

For the constructive dismissal to be automatically unfair, the repudiatory act or omission must

be caused by the exercise of the employee’s rights under s.100 ERA 1996 and doing a

protected act.

No case law in respect of s.100 ERA 1996 yet…

Who does the law apply to?

s.44 ERA 1996 expressly only protects ‘employees’ but the EC Directive 89/391/EEC refers

only to ‘workers’.

Article 3 defines ‘workers’ as “any person employed by an employer, including trainees and

apprentices but excluding domestic servants”.

‘Employer’ is defined as “any natural or legal person who has an employment relationship

with the worker”.

Going forward

The law is going to evolve and quickly!

Expert evidence may be required.

Risk assess risk assess risk assess and risk assess again…

Be mindful of the expansive nature of the statutory protections (e.g. ‘Danger to others’, consider in the context of a

care home setting and the risk of infection). See also Dent v Reading Omnibus (ET).

Edwards and Others v Secretary of State for Justice UKEAT0123/14/DM

- Case highlights the importance of communication from employer to employee. Whether or not the belief in danger

was reasonable:

“37…depends on what the Claimants were told or knew about the condition…” (HHJ Richardson)

N.B. Compulsory ADR is on its way. Target is 6-8 weeks’ post-exchange of witness statements, ‘in person’

compulsory ADR hearing. Quasi judicial assessment/mediation.

Going forward

Thursday 4th June

Jason Searle

COVID-19 - The new Disability

In this talk Jason will address the likelihood of virus survivors having the protection of the Equality Act 2010 by

reason of satisfying the definition of disabled and the inevitable increase in litigation involving overlapping claims of

discrimination, whistleblowing and H&S breaches. This is not an equal opportunities pandemic.

Thursday 11th June

Ghazan Mahmood

Race Discrimination – an overview

https://stjohnsbuildings.com/news/category/events

Thanks for listening…