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In this case a chef was dismissed after refusing to mop up an area behind some fryers in the kitchen where he worked. He stated that he did not believe it to be safe as recent maintenance work had led to some electrical wiring being left exposed.
The employer took a statement from the maintenance manager who stated that there was no danger. The employer accepted the maintenance manager’s statement and dismissed the employee on the grounds of disregarding food hygiene and failing to follow a reasonable management instruction.
The Tribunal at first instance found that the dismissal was not automatically unfair, but the EAT overturned this decision on appeal.
The EAT said that in considering such claims, the Tribunal should consider whether:
- There were dangerous circumstances that employees reasonably believed to be serious and imminent; and
- The employees took, or proposed to take, appropriate steps to protect themselves or others from the danger, or to communicate the relevant circumstances to the employer.
The EAT went on to say that if this is not established, then the claim fails. If it is established, then the tribunal should ask whether an employer’s sole reason, or the principal reason for the dismissal was the employee’s actions. The fact that an employer may disagree with an employee’s view as to whether there was actually danger, or whether the steps the employee took were appropriate is irrelevant.
Employer’s need to exercise caution when dismissing employee’s in circumstances where health and safety is an issue, as any successful claim under section 100 (1) (e) of the Employment Rights Act 1996 is automatically unfair.
