Good morning and welcome to your weekly dose of case law. Unlike the flu jab, doses of case law aren’t exclusive to Autumn! Last week  we looked at protected conversations and admissibility of evidence in relation to pregnancy and maternity discrimination. This week we are looking at health and safety dismissals and trade union activities.

Section 100 of the Employment Rights Act 1996 covers dismissals relating to health and safety. Health and safety is one of a select category of claims where if the dismissal is for that reason will be automatically unfair. For example an employee who is the designated health and safety officer will be held to have been automatically unfairly dismissed if they have been dismissed for carrying out, or, attempting to carry out, their health and safety duties. Any dismissal in relation to trade union membership or activity will also be automatically unfair.

In light of the above, today’s question is:

Will a dismissal for refusing to attend work be automatically unfair if the refusal related to the employee being prevented from performing health and safety duties?

Mr Markham, the Claimant, was a HGV driver for Asda Stores, the Respondent. The Claimant was a member of the trade union GMB, the Respondent’s recognised trade union for the purpose of collective bargaining.

As part of the agreement between GMB and the Respondent, GMB was able to appoint health and safety representatives. The Claimant was GMB’s designated representative for the Respondent’s Belvedere depot.

The role of health and safety rep involved consulting with the Respondent on how to introduce and improve safety measures. It also required the rep to investigate and inspect areas of the Respondent’s premises that were hazardous, where accidents had taken place or where employees had made health and safety complaints.

The Claimant sought to organise a site inspection. The Respondent alleged that the Claimant had not complied with the necessary formalities and prevented the Claimant from making an inspection. The Respondent then requested the Claimant undertake his HGV driver duties. The Claimant refused and he was suspended and ultimately dismissed.

The Claimant commenced several employment tribunal claims, including those of unfair dismissal, automatic unfair dismissal in relation to health and safety and automatic unfair dismissal for participating in trade union activities. The Employment Tribunal dismissed all the claims.

The Claimant appealed citing the ETs failure to properly assess the health and safety and trade union claims. The EAT allowed the appeal in relation to the health and safety claim but not the trade union claim. The health and safety claim was remitted back to the ET to be reconsidered.

The takeaway point:

A dismissal in relation to going AWOL after being refused permission to carry out a health and safety inspection could be automatically unfair. As with most employment tribunal claims, cases will hinge on their respective facts. A refusal due to failure to bring the correct equipment will probably not justify an employee going AWOL. A refusal in an attempt to conceal poor safety practice almost certainly would.

As with last week’s case, this case is another example of how employees can also jeopardise their chances by submitting too many claims. A scatter gun approach will detract from the stronger claims, in this case health and safety.