Out of the frying pan
Labour & European Law Review Weekly Issue 240 20 October 2011
The Employment Rights Act 1996 (ERA) says that it is unfair to dismiss an employee on health and safety grounds in certain circumstances. In Oudahar v Esporta Group Ltd, the Employment Appeal Tribunal (EAT) said that Tribunals first have to ask whether the relevant criteria in the law had been met; and then whether the employer dismissed the employee solely because they had tried to protect themselves from danger.
Mr Oudahar started work as a chef in the kitchen of one of the company’s health clubs in January 2008.
Following some maintenance work, his manager asked him three times to mop an area behind the fryers on the morning of 21 November 2008. He refused on health and safety grounds, saying that work undertaken overnight was incomplete and there were wires coming out of the wall.
He was suspended that day and dismissed on 12 December 2008, partly for disregarding food hygiene and partly for failing to obey instructions. He claimed automatic unfair dismissal on grounds of health and safety under section 100(1)(e) of the ERA.
Section 100(1)(e) of the ERA says that it is unfair to dismiss an employee if, “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”.
The Tribunal said the dismissal did not fall within section 100(1)(e) because, having investigated the allegation of health and safety, the company had preferred the account of another witness who said there was no risk.
It concluded that the company had therefore dismissed Mr Oudahar for failing to follow a reasonable instruction.
The EAT, however, said that the Tribunal was wrong and should have applied section 100(1)(e) in two stages.
Firstly, it should have considered whether the criteria had been met, as a matter of fact. For instance, were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? If these criteria were not satisfied, then section 100(1)(e) was not engaged, said the EAT.
If they were satisfied, then the Tribunal should have asked whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.
The Tribunal had answered the second question, but not the first. The mere fact that the employer disagreed with Mr Oudahar as to whether there were circumstances of danger, or whether the steps were appropriate, was irrelevant.The intention of Parliament was that an employee should be protected from dismissal if they took or proposed to take steps falling within section 100(1)(e).
The case was remitted to the same Tribunal to “make the findings required to resolve the issues in accordance with this judgment”.
Although the government has announced that the period of service required for unfair dismissal is set to rise from one to two years, union reps should remember that for some aspects of employment law, such as health and safety, no qualifying period is required.