The law says that it is automatically unfair to dismiss a designated health and safety representative for raising concerns about health and safety in the workplace. In Castano v London General Transport Services Ltd, the Employment Appeal Tribunal (EAT) held that an employee who has not been designated as a health and safety rep cannot claim automatic unfair dismissal.
Mr Castano, a bus driver working out of the company’s Putney garage, was dismissed on conduct grounds. As he had less than two years' service, he claimed that he had been subjected to detriment under section 44(1)(a) and (c) and/or had been dismissed under section 100(1)(a) and (c) under the Employment Rights Act (ERA).
Subsection 1(a) of both clauses provides specific protection for employees who have been designated to carry out health and safety activities by their employer. Subsection (1)(c) then addresses the situation where there is either no designated representative; or where there is one, but it is not “reasonably practicable” for the employee to raise the matter with that person.
For the purposes of subsection (1)(a) in each instance, Mr Castano relied on the fact that he was a bus operator who was required to hold a Public Carrying Vehicle licence. As such, he had health and safety responsibilities for passengers, other motorists and road users, making him a designated health and safety person.
In the alternative, he relied on subsection (1)(c) of sections 44 and 100. Given that there was already a health and safety representative at Putney garage, Mr Castano argued that his workplace was the bus route he was required to drive. As he was the only employee driving the bus, he was the designated health and safety representative at his place of work.
Rejecting his claims as having no reasonable prospect of success, the tribunal found that Mr Castano’s place of work was clearly stipulated in his contract as being the Putney bus garage as opposed to the bus route or his bus. As for the protection provided under the ERA, this was not intended to confer rights on all employees, but rather on specific individuals within the workplace.
With regard to his argument about the health and safety responsibilities of bus drivers, the tribunal held that although they might have more onerous duties than (say) office workers, ultimately all employees have health and safety obligations.
There was, the tribunal concluded, a difference between having contractual obligations to carry out health and safety duties in the normal course of work (applicable to all the bus operators) and being "designated by the employer to carry out activities in connection with preventing or reducing risk to health and safety at work", the specific status protected by subsections (1)(a) and (c).
And the EAT agreed with the tribunal. Although Mr Castano’s contract contained a number of provisions relating to health and safety at work, they did not impose any specific obligations on employees. Nor did they designate employees working in accordance with these contractual conditions as carrying out activities in connection with preventing or reducing risks to health and safety at work.
It also rejected his argument that he was the “designated” health and safety representative, not least because another employee had been specifically designated to carry out that role at his place of work which was clearly Putney bus garage, as opposed to his bus or bus route. The fact that bus operators also had some health and safety obligations as part of their duties did not mean that they had been designated to carry out this far more specific role.
Finally, it concluded that although Mr Castano had raised his concerns about health and safety with his managers, it had clearly been “reasonably practicable” for him to talk to the designated health and safety representative at his place of work.