Harvest Press Limited v McCaffrey [1999] IRLR 778
Masiak v City Restaurants (UK) Limited [1999] IRLR 780
This month we report two decisions of the Employment Appeal Tribunal concerning health and safety dismissals under Section 100 of the Employment Rights Act 1996 (ERA). There is no qualifying period of service before an employee can bring a health and safety dismissal case, therefore the provisions of Section 100 of the ERA provide important protection for new employees who raise health and safety issues. In these two decisions the EAT rejects the overly restrictive interpretations of Section 100 advanced by the employers in each case.
In the first case Mr McCaffrey was employed as a machine minder. He worked on the night shift with one other person, a Mr Huson. He had worked at the factory for less than three months. Mr McCaffrey complained to his employers about Mr Huson. Mr Huson found out about the complaint because he had been asked to stay behind at the end of the shift to see the manager. During the night shift Mr Huson became abusive, shouting at Mr McCaffrey and standing over him while he attempted to ring his manager. Mr McCaffery was scared by this, did not feel safe at work and went home to ring his manager. He also spoke to someone more senior in the company and said he would not return unless he had some assurances about his safety.
The director spoke to Mr Huson and accepted his version of events. He then rang Mr McCaffrey and told him by walking out in the middle of a shift he had resigned and he was sent his P45. Mr McCaffrey pursued an Employment Tribunal claim that he was dismissed for a health and safety reason. This includes the right to leave the workplace where the employee believes there is serious and imminent danger.
The employers argued that the word "danger" is limited to dangers generated by the workplace itself and not dangers caused by co-workers' behaviour. The Employment Tribunal disagreed and found that Mr McCaffrey had been unfairly dismissed for a health and safety reason.
The EAT upheld the Tribunal's decision saying that the words in the statute "are quite general", and "danger" could cover dangers caused by the behaviour of fellow employees. They gave other examples of where co-workers' behaviour could give rise to danger.
The case of Masiak concerned Section 100 (1)(e) of the ERA which gives protection where an employee takes steps to protect himself or other persons from serious and imminent danger.
The employers tried to argue that the words "other persons" related only to other employees and not members of the public. Mr Masiak was employed as a chef for just over a month. He left the premises after refusing to cook food (partially defrosted chicken) which he considered was a potential hazard to public health.
The Employment Tribunal rejected his claim, accepting the employer's argument that members of the public were not covered by the words "other persons". The EAT disagreed. They looked at the EC Directive and the legislation and decided that neither limited the class of persons at risk of danger to just those employed by the employer. They sent the case back for a rehearing before a different Tribunal.
Both these case are a welcome addition to the case law by taking a purposive approach to the legislation and giving the employees concerned protection from dismissal for health and safety reasons regardless of their short service.