25 May 2021 | Comment | Article by Eleanor Bamber
Mr Sinclair was employed as a track maintenance supervisor and responsible for implementing a new safety procedure. This was not a task that his colleagues were aware of. Some of his colleagues raised concerns about what he was trying to do and complained about his "overcautious and somewhat zealous" approach.
Mr Sinclair was subsequently dismissed for the “upset and friction” that his activities had caused. He brought an automatically unfair dismissal claim under section 100(1)(a) of the ERA 1996.
At first instance, his claim was rejected by an employment tribunal. The tribunal found that it was the way in which he had carried out his health and safety activities (leading to the workforce being demoralised) rather than the health and safety activities themselves, that had caused his dismissal.
He appealed to the EAT.
The EAT allowed Mr Sinclair's appeal on the basis that it was recognised that carrying out health and safety activities will often be resisted, or regarded as unwelcome, by colleagues. The EAT considered that it would undermine the protections given by section 100(1) if an employer could rely on the upset caused by legitimate health and safety activities as a reason for dismissal unrelated to the activities themselves.
It was accepted that there could be cases where an employee’s conduct may be unreasonable, malicious or irrelevant to the task in hand and that in these cases the conduct could be separated from the carrying out of the activities. However, this was not one of those cases. Mr Sinclair had carried out his duties diligently but, as a direct result of doing so, caused poor relations with the workforce because of what they perceived as overzealousness on his part. These issues were not properly separable from the carrying out of health and safety activities, and he was merely doing what he had been instructed to do. Consequently, the EAT substituted a finding of automatically unfair dismissal and remitted the matter to the tribunal to consider remedy.
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