Grounds for dismissal19 April 2007
When an individual's poor performance or neglect are identified as the cause of a safety failure, it falls on safety professionals and human resources departments to decide the employee's fate. Peter Zymanczyk looks at what they can learn from the past.
Dealing with employees who fail to comply with health and safety requirements is a tricky problem requiring coordination and cooperation between health and safety and human resources professionals.
Disciplinary action, up to and including dismissal, must meet the requirements of the Employment Rights Act 1996 (ERA), section 98. However, there is no special provision for health and safety contraventions per se, and this is where doubt can sometimes creep in. The human resources manager and the safety practitioner often lack sufficient knowledge of each other's disciplines to incorporate the breach of health and safety into the overarching framework of employment law.
Employment law provides five grounds for dismissal:
- the capability of the worker for the employment in question;
- the conduct of the employee;
- that the employee could not continue to work in the position which he held without contravention, either on his part or his employer's, of a restriction or duty imposed by statute; or
- some other substantial reason justifying the dismissal of a worker from the position they hold.
A company's disciplinary procedures should be contained within the express terms of an individual's contract of employment, and these procedures must be properly applied. If an employer genuinely and conscientiously believes that the continuing employment of an individual represents a health or safety hazard, they are entitled to dismiss the employee. However, "such dismissals should only be carried out with a full investigation of the relevant circumstances. A procedural failure is likely to result in a wrong decision being reached and hence an unfair dismissal."1
It may be for a tribunal to decide whether, in the circumstances, "the employer acted reasonably in dismissing the worker".2
Assuming that the correct internal disciplinary procedures are applied, the reason for bringing disciplinary action must clearly fall into one of the five categories listed above.
In order to illustrate how each of these categories may encompass health and safety breaches, it is helpful to look at past employment tribunal cases.
The requirement for an individual to earn a living may force them to do work that is beyond their capability, and, in doing so place themselves, and others, at a higher risk of injury.
In the past, a worker could be dismissed by an employer if they became physically incapable of doing a job. This may have been owing to a disability, the worker becoming a danger to themselves or others, or an inability to adapt to new methods of work. For example, in Spalding v Port of London Authority (1977), an employee was found to be deaf during a medical. Attempts to use a hearing aid proved unsatisfactory, and he was dismissed. The court found this to be fair. In Finch v Betabake (Anglia) Ltd. (1977) a mechanic, owing to poor eyesight, was a danger not only to himself but to others, and was subsequently dismissed.
Nowadays, these cases may not have held up in court. The Disability Discrimination Act (DDA) 1995 requires employers to make ‘reasonable adjustments' to working arrangements for disabled employees. But, the application of the DDA can be complex. For example, in Archibald v Fife Council (2004) the court found that the employer had a positive duty to make reasonable adjustments, including transferring a person to a job at a slightly higher grade, and a period of six months to be set aside for re-training. However, in Coxhall v Goodyear Great Britain Ltd. (2002) it was ruled that where the risk to an employee's health and safety was significant, and no reasonably practicable alternative employment could be found, dismissal may be the only available option.
"To establish that it is fair to dismiss an employee for refusing to follow safety rules or use precautions provided, it must be shown that (a) the employee knew of the requirement, (b) the employer was consistent in his enforcement policies, and (c) the precautions were suitable for the employee, and for the work he was doing."1
While it would be impossible to list all the possible safety breaches that could lead to a dismissal on grounds of conduct, the following examples are instructive. In Jenkins v British Gypsum Ltd., a worker employed to monitor kiln temperatures as a safeguard during the night shift was found asleep on duty, and was dismissed. There was no rule to prevent sleeping on night shifts, but the subsequent employment tribunal found the dismissal to be fair, commenting that alertness was an ‘essential' part of the safety considerations for the job.
Other examples of obviously dangerous conduct include the lighting of a bonfire near flammable materials (Bussey v CSW Engineering Ltd. 1973), smoking in a paint and wood shop (Bendall v Paine and Betteridge 1973), shooting air guns during lunch breaks (Shipside [Ruthin] Ltd v T&GWU 1973) and leaving a high pressure steam boiler unattended (Gannon v J.C. Firth Ltd 1976).
There are some activities where the degree of safety required is so high, and the consequences of failure to achieve those standards so serious, that any departure from them could warrant instant dismissal.1 In Frizzell v Flanders, for example, an employee was dismissed after working inside a tank without a gas mask, ignoring an essential safety precaution that was rigorously enforced.
An employer must be consistent in dealing with serious breaches of procedures. In Wilcox v HGS (1976), a gas fitter was dismissed for failing to complete a mandatory test after converting a building's gas supply from town gas to natural gas. After hearing evidence that the employer had acquiesced on other safety requirements, the Court of Appeal changed the dismissal to a final warning.
In almost opposite circumstances, in Wood v Brita-Finish Ltd. (1976) an employee demanded overalls as additional protective clothing. The employer had used overalls in the past, and found them to be ineffective. The employee refused to work unless he had overalls, and was therefore dismissed. The court found this to be fair. Today the Management of Health and Safety at Work Regulations 1999 (MHSWR) require risk assessments, the significant findings of which have to be shared with employees. In these circumstances, a better understanding of the employer's arrangements may have satisfied the employee.
An employer has the right to expect their employees to "exercise reasonable skill and care in the performance of their contracts. If they do not do so, apart from any disciplinary action that may be taken against them, there is an implied duty to indemnify the employer."3
Theoretically, an employer can recover damages by suing the negligent employee. In Lister v. Romford Ice and Cold Storage Ltd. (1957) Lister was employed as a driver. He injured another employee, his father, by reversing a vehicle into him. The father sued his employer, and the insurance company insisted the employer sued Lister. This is a very unusual situation, as, should an employee fail to exercise reasonable skill and care, "the final power left to the employer is to dismiss the employee".1
Taking this principle a stage further, employers must take reasonable steps to ensure "that employees do not behave in such a fashion that they are a source of danger to others."3 In Hudson v Ridge Manufacturing Co Ltd. (1957), an employee, known to be a practical joker, took a prank too far and injured a fellow employee. The employer was liable to pay compensation for the employee's actions, as they knew his character and so should have taken action to either curb his behaviour, or dismiss him.
Conversely, in Coddlington v International Harvester Co. (1969), an employee behaved out of character, in a way that injured a fellow employee. The employer was not held liable, as previous conduct did not suggest that the employee was a danger to others. Both cases could give rise to dismissal on the grounds of misconduct.
By ‘walking off the job' an employee is considered to have resigned, but this does not apply if they ‘walk off' in response to serious and imminent danger. In Harvest Press Ltd v McCaffery (1999), an employee walked off a job because of an abusive and threatening colleague. His dismissal was found to be unfair as the perception of danger rests with the employee and is not confined to dangers arising directly from work. An employee cannot be dismissed if he believes that he is protecting himself or others against serious or imminent danger. This is interpreted widely. Another example of this is Masiak v City Restaurants (1999), in which a cook refused to cook food he believed unfit for human consumption, and his dismissal was judged to be unfair.
Being a safety representative (SR) – or safety assistant – does not grant any greater protection against redundancy than for any other employee. However, the ERA does grant some protection from dismissal (section 100) and provides that an employee who is an SR will not be subject to any detriment (section 44). However, in Costain Building & Civil Engineering Ltd v Smith, a trade union-appointed safety representative did not have his contract renewed, and was therefore prevented from attending the site. The protection of ERA section 100 applies only to employees, not contractors.
In Bass Taverns Ltd v Burgess it was found that providing an SR remains within health and safety boundaries they are protected even if they act in an extreme manner. An SR should not be overawed by management, but the boundary is a fine one. In Shillito v Van Leer (UK) Ltd, it was found that the employer was correct to discipline an SR who had pursued a personal agenda in order to embarrass his employer.
Protection extends to ordinary employees if there is no SR at their premises. In Harris v. Select Timber Frames Ltd. an employee made a complaint (as there was no SR on the site), which resulted in a visit from an HSE inspector. He was subsequently dismissed prior to an examination by an employment medical advisor. It was successfully argued at a tribunal that the dismissal was for raising health and safety concerns, and therefore unfair.
A restriction or duty imposed by statute
Some statutes (e.g. Ionising Radiation Regulations 1999 and Control of Lead Regulations 1998) require an employer to undertake biological monitoring. An employee failing to submit to such monitoring can be dismissed. The result of a particular test may mean an employee has to be temporarily suspended from work. In an extreme situation they may be dismissed. In Yarrow v QIS Ltd. an employee was found to suffer from psoriasis. He worked with radiography equipment that came under the Ionising Radiation (Unsealed Sources) Regulations 1969, and his condition made it unsafe to continue his employment. He was dismissed and this was held to be fair. However, as previously stated, the DDA may apply, and efforts to make reasonable adjustment would have to be exhausted before such a dismissal took place today.
Other substantial reasons for dismissal
Zero tolerance policies towards alcohol and drugs at work are not unusual, and apply to many professions. However, this policy must be notified to employees and may be included in the express terms of employment. An employer must be careful in the constraints it places on employees outside work. Anything that is likely to restrain employees' freedom "must be reasonable in the interests of the parties and the public".4
In O'Flynn v. Airlinks the Airport Coach Co Ltd., the company introduced a zero-tolerance drug policy. Following a positive test at work, an employee was dismissed. The dismissal was subsequently found to be fair at a tribunal. The argument that this was a breach of human rights failed on two points: firstly the European Convention on Human Rights only applies to actions of a public authority, which the employer was not; secondly, the private right to privacy is secondary to the interests of public safety.
A variety of breaches of health and safety can be accommodated within normal employment disciplinary arrangements, without the need for a specific provision. But there is a need for proper investigation and presentation of the facts. This is an evolving area of law; cases used to illustrate points in at least two areas discussed here may not hold now owing to the provisions of the DDA.
New legislation, particularly from Europe, continues to influence past interpretations of employment law. This means human resources managers and safety practitioners must remain abreast of legislation as it affects their respective areas of responsibility. Where there are crossovers between their disciplines, collaborative working is the most effective and professional way to tackle these issues.
1 Selwyn, N. (2004): The Law of Health and Safety at Work 2004/05 (Thirteenth Edition), Thomas Lithgo
2 Marsh, S.B. and Soulsby, J. (2002): Business Law (Eighth Edition), Nelson Thornes
3 Lewis, D., Sargeant, M. (2000): Essentials of Employment Law (Sixth Edition), IPD
4 Beatson, J. (2002): Anson's Law of Contract (28th Edition), Oxford University Press
Cases cited in this article
1. Archibald v. Fife Council (2004) UKHL 32, (2004) 4 All ER 303
2. Bass Taverns Ltd v. Burgess (1995) IRLR 596
3. Bendall v. Paine and Betteridge (1973) IRLR 44
4. Brian Farmiloe v. Lane Group plc and North Somerset Council, EAT/ 0352 and 0357/03/DA
5. Bussey v. CWS Engineering Ltd. (1973) IRLR 9
6. Butler v. Fife Coal Ltd. (1912) AC 149, HL
7. Codlington v International Harvester Co of Great Britain Ltd. (1969) 6 KIR 146
8. Costain Building and Civil Engineering Ltd v. Smith (2000) ICR 215
9. Coxhall v. Goodyear Great Britain Ltd (2002) UWCA
10. Lister v. Romford Ice and Cold Storage Ltd. (1957) AC 555
11. Finch v. Betabake (Anglia) Ltd (1977) IRLR 470
12. Frizzell v. Flanders (1979) HSIB 43
13. Gannon v. J.C. Firth Ltd. (1976) IRLR 415
14. Goodwin v. Cabletel UK Ltd (1997) IRLR 665
15. Harris v. Select Timber Frames HSEB 222
16. Harvest Press Ltd v. McCaffery (1999) IRLR 778
17. Hudson v Ridge Manufacturing Co Ltd. (1957) 2 QB 348, 1957 2All ER 229
18. Jenkins v. British Gypsum Ltd.
19. Masiak v. City Restaurants (1999) IRLR 780
20. O'Flynn v. Airlinks the Airport Coaches Co Ltd (2002) EAT 0269/01
21. Parsons v. Fisons Ltd (1977) HSIB 20
22. Shillito v. Van Leer (UK) Ltd (1997) IRLR 495
23. Shipside (Ruthin) Ltd. v. Transport and General Workers Union (1973) AER 514
24. Smith Industries Aerospace & Defence Systems v. Rawlings (1996) IRLR 656
25. Spalding v. Port of London Authority (1977) HSIB 20
26. Taylor v. Alidair Ltd (1978) IRLR 82, CA
27. Wilcox v. HGS (1976) ICR 306, CA
28. Wood v. Brita-Finish Ltd (1976) HSIB 6
29. Yarrow v. QIS Ltd (1977) HSIB 20
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