Hello. My name is Alice to Ha Jin. Can I welcome you to this data law? Webinar on health and safety detriment and dismissals to cover the entire scope of health and safety law in the course of a 30 minute webinar would be nigh on impossible. My purpose over the next 30 minutes or so is to focus on one particular aspect of health and safety law. And that is where it into weaves with employment law in terms of its inter relationship with employees, safety representatives and safety committees. For those of you who are seasoned employment lawyers, you will know that Section 44 of the Employment Rights Act gives protection in relation to health and safety detriments. Similar provisions exist in relation to protection for dismissal on health and safety grounds. Now, it's important to note at this early stage that this does not apply across the board to all employees will look at the various categories that come into play and the way that the legislation works. It's very much a niche area and sometimes oft forgotten. But nonetheless it is an important aspect. Well, look at the protection that is afforded to individuals against victimization. We'll look at the protection against unfair dismissal and the connection. The causal link between the detriment and all the dismissal is really certain matters of health and safety, to which I will come in some detail. Firstly, who has the right not to suffer a detriment or indeed, be unfairly dismissed relating to health and safety grounds? Well, firstly, the legislation only applies to those who are employees. Therefore, any potential claimant must be an employee within the meaning of Section 230 of the Employment Rights Act of 1996. In the event that the employer can establish that the individual claimant was not an employee, then there is no jurisdiction for the employment tribunal to consider the claim. Importantly, though, for those of you who do police work and if you know me and you know my Chambers five Essex Court, you will know that we act for a large number of police forces up and down the United Kingdom. Section 49 a of the Employment Rights Act, does state that the health and safety provisions that we'll be looking at also applies to police officers. Police officers are deemed to be employees by virtue of section 49 A. For the purposes of this particular part of the legislation. To whom does it not apply well? The health and safety provisions don't apply to share fishermen or foreign merchant seamen, but the rights do apply to crown employees and parliamentary staff in terms of a qualifying period of employment. For those of you as a seasoned employment lawyers, you will know that in the realms of unfair dismissal, uh, invariably for an ordinary, unfair dismissal, one needs a qualifying period of two years as far as Section 44 the health and safety provisions are concerned. Uh, firstly, in relation to a detriment claim, no period of continuous employment is required in order to be, uh, in order to bring a claim for detriment under health and safety grounds. Nor, if the detriment complained of is dismissal, it would be an automatic unfair dismissal, and again, no continuous period of employment. Uh, is required parking the concept of dismissal for one moment. Let me deal with the actual right that employees acquire by virtue of section 40. For quite simply, an employer must not deliberately subject an employee to any detriment on the ground that the employee has engaged or has proposed to engage in any one of six specified kinds of activities. And I'm going to work through all six of those activities with you so that you get a flavor of how the legislation works. The first category that we need to look at is contained in section 40 for one A. This gives protection to what if you like, would be called the employer appointed safety officer. In other words, what what is that? Well, the employer appointed safety officer is what in common parlance one would refer to as the health and safety rep. It is an employee within an organisation who has been detailed by an employer to carry out activities in connection with preventing or reducing any risks to health and safety at work. And most organizations, certainly larger organizations, will have such a designated individual. Section 44 1 is important because it only applies to those individuals were not looking at the workforce at large or anybody else. It's purely giving protection to that employer appointed safety officer. What is that? What protection does the safety officer have? Well, it's quite straightforward the employer must not subject such an employee. I eat the health and safety officer to any detriment for doing or proposing to do what he is supposed to do in that respect. So therefore, if someone a health and safety officer were to be bullied by management because they're seeking to carry out their duties as safety officer, that would be an unlawful act. Uh, and the the employee would have a bona fide claim to the employment tribunal. Note, please. In relation to employer appointed safety officers that there is no requirement under the legislation for the employee, the employer appointed safety officer to act reasonably in the discharge of his or her functions. The employees motive in pursuing whatever concerns they may have in relation to health and safety matters is not relevant for the purposes of this particular type of claim. What I should have said, of course, earlier, In terms of the practicalities, a claimant would usually raise a prima facie case of detriment. They would say that I'm being bullied or that I'm being excluded from meetings, whatever the detriment, maybe, and in the practical sense in an employment tribunal claim it would then fall to the employer to show that the reason for excluding the employee from meetings, whatever the detriment, maybe, was for a non health and safety reason. In other words, in Section 44 1 A. It would be for the employer to show that the reason for subjecting the employee to the detriment had nothing to do with the employee doing or proposing to do some form of act in relation to preventing or reducing risks to health and safety at work. So that's the first category of protection that is afforded. The second category relates to Section 44 1 B now with section 44 1 A. We looked at the concept of the employer appointed health and Safety representative or health and safety officer. Section 44 1 b deals with the individual who is appointed under the Health and Safety at Work Act of 1974 or otherwise. In other words, not an employer appointed safety officer, but a worker appointed safety representative, or, indeed, in larger organizations, a worker appointed member of what is called a safety committee. Because in larger organizations under the Health and Safety at Work Act, there can be a safety committee who is tasked with ensuring health and safety at work or preventing or reducing any risks. So if one is a worker appointed safety representative or a member of a safety committee, what protection do you get? Well again? It is relatively straightforward. A member of a safety committee, a worker appointed safety representative will have a claim in the employment tribunal if they are subjected to any form of detriment for carrying out or proposing to carry out their proper functions as a safety representative or member of a safety committee. Very, very similar to sector to what we looked at on section 44 1 a. The act, of course, in this regard, in respect of 44 1 B safety committees and or worker appointed safety representatives, the act is silent on the manner in which they carry out their duties or indeed, the motive that may well be a lacuna in the legislation. I don't know, I haven't ever I haven't yet done a case that would examine whether motive or a manner of carrying out the duties would be relevant to this particular type of claim. But what we do know is that the employee, whether a member of a safety committee or a worker appointed safety representative, that they will gain protection if they are acting bona fide in the discharge of their functions again looking at it from the employer perspective, it would be a defense to the employer to show that any detriment, whether that be exclusion from meetings or bullying in the workplace, whatever it is, was not meted out to the employee concerned because they were proposing to carry out their functions as a worker, elected safety representative or as a member of a safety committee. The third area of protection is in relation to consultations. If you look at section 40 for one little be A of the Employment Rights Act of 19 96 you will see that in some. In some respects, this overlaps with the second case that we looked at a moment ago, that of the worker appointed safety representative and or the member of the safety committee. And what Section 44 1 B A does is it protects employees who are engaged in concert consultations with their employer about health and safety under the 1990 six regulations, essentially where there is a trade union representative. The employer is under a duty to consult pursuant to the 1996 regulations in relation to various safety and health matters. If, however, the employees have no formal trade union representative, then the employer, by virtue of this, by virtue of the 1990 six regulations, is supposed to consult directly, either with employees or with an elected spokesperson on behalf of those employees. Looking at it again. If if that is the case of consultation on health and safety is ongoing, it would be unlawful for the employer to subject any employee to a detriment for participating in such consultations or in participating in the election of a spokesman who would then go on to consult with the employer. So again, from the employer's perspective, if there is some form of detriment, whether it be bullying or exclusion from meetings, whatever it may be, the burden would then be on the employer to show some form of other reason as to why they were excluded from meetings and not because the employee was participating in health and safety consultation or indeed was participating in the election of a spokesperson to deal and consult with the employer under the 1996 regulations. I should, of course, add that all of these factors that I am looking at whilst I am referring to it in the context of Section 44 detriment. The same applies in terms of the automatic unfair dismissal where it's not simply a detriment during the employment. But the employee is actually dismissed for any of these reasons that I'm talking about. Then the dismissal would be automatically unfair, and the employer would have to show some other reason for the termination of the employment that applies to all six areas that I'm looking at in the course of this discussion of the legislation. Well, three down, three to go. Let's now move to the fourth category, uh, section 44 of the Employment Rights Act of 1996 and that really is to do with what one might call the concerned individual. You'll find the provisions relating to this in Section 44 one C of the Employment Rights Act of 19 96 who is protected here. This is in relation to an employee who works at a place where there is no official safety representative or safety committee. Or as an alternative, it relates to an employee who works at a place where there is a health and safety rep or safety committee, but where it is not reasonably practicable to raise the relevant health and safety issue through either of those bodies, whether it be the safety representative or the safety committee. A few pointers on this This, of course, covers the situation where an employee raises health and safety concerns with their employer. Uh, now it's important to note, and I have done a case on this that the employer does have a prima facie our defense to any detriment or automatic unfair dismissal claim. By showing, as a matter of fact that the employee does not come within the terms of the section, let's deal with it in two ways. Firstly, as I've said, if there is no health and safety representative or health and safety committee, the employee is permitted to raise health and safety concerns with their employer. That's absolutely fair. That's absolutely cast iron. I did a case once, however, where there was a health and safety representative. There was a safety committee, and therefore the argument is is it reasonably practicable to raise those matters via those individuals? Uh, and in my case, the tribunal clearly found that it was every employee within the organization had the contact details of the health and safety representative. They also via the Internet, had the contact, details and access to members of the safety committee. And therefore, because of that wide publication, it was therefore reasonably practicable for the employee concern to have raised those issues with those individuals because, as a matter of fact, it therefore did not sit within the requirements of this particular section. Section 44 1 see the claim failed effectively ab initio. But assuming, of course, that the employee can tick the boxes that there is, uh, there is no representative and there is no safety committee or that there is such a committee or, uh, individual. But it's not reasonably practicable for them to do it. Uh, again, it's, uh it moves on to the second stage of establishing the detriment. It will be unlawful for an employer to subject that employee to a detriment in either of those situations. On the ground that the employee has raised health and safety concerns with the employer. Now importantly, here, the employee must behave reasonably, so there's an element of reasonableness that comes in to considering the employee's conduct to establish whether it was in fact, made in good faith. As I say, there must be reasonable behavior on the part of the employee. It must be raised with the employer by reasonable means, and the employee must have a reasonable belief that there is a health and safety concern. Regrettably, for us, there is very little, if any, case law dealing with this particular aspect in Section 44 as to what is and is not reasonable behavior, what is raising the issue by reasonable means and the employee having a reasonable belief in some form of health and safety? Concern? Whether case law will develop in subsequent years is a matter that we will only see in due course. So that's section 44. 1 C. In other words, it's where there's no health and safety representative. There's no safety committee, and the employee raises concerns with the employer or the situation where there is a representative or safety committee. But it's not reasonably practicable to raise it with those bodies. Let me now move on to the slightly more violent subject, I suppose of what we call evasive action. Now this is great fun. In practice, evasive action is covered by Section 40 41 D of the Employment Rights Act, and this is where an employee believes himself to be in serious and imminent danger and who on that account quits work? So in other words, I'm an employee in a factory, and I see that there's an acid spillage or something like that, something that's gonna make me Hydrofluoric acid. I remember an episode of Casualty many years ago where there was a spillage of Hydrofluoric acid on a roadway. Now, Hydrofluoric acid is not only corrosive, it is also explosive, and it's also highly toxic. But I digress. I don't want to turn this into a chemistry lesson, but let's say there is a spillage of such hazardous material, and the employee thinks, Oh my God, I'm in serious danger. I'm in imminent danger and therefore I'm quitting work. I'm out of here. The employees believe in this case again, must be genuine and reasonable. There must be a degree of reasonableness to it again, as we saw with section 44 1 c. There's no real case law as to the guidance to be given on whether or not a belief is reasonable. It will be a matter for the employment tribunal, considering all the facts of a particular case. Therefore, what is the protection well, that individual who perceives serious and imminent danger and quits work? It is unlawful for the employer to subject the employee to any detriment for leaving the area of danger or proposing to leave the area of danger and for refusing to return to work while the danger continues. So in other words, when I say leave work, I'm not talking about resigning from employment. What I'm simply saying is leaving the workplace because a serious or imminent hazard is perceived by the employee. If the employee, if the employer says to the employee, get back to work now, otherwise I'm going to give you a first written warning or whatever it may be, then that arguably would contravene. That would be a detriment or indeed, dismissal. That would be a bad thing for the employee, and they would be protected by virtue of section 44. 1 d. There is an authority of which to make you aware again, although my example of Hydrofluoric acid was somewhat of a dangerous one, there is an authority from 1999 called Harvest Press LTD. And McCaffrey, in which the Employment Appeal tribunal, in considering this perception, particular section of the Employment Rights Act of 1990 six held that, uh, serious and imminent danger that actually includes the risk of being attacked by a fellow employee. So it's not simply limited to spillages of hazardous chemicals or defective premises or whatever. It may be if there is a fellow employee who is somewhat psychotic and there is a risk to a claimant that they are going to be beaten up and or hit and or maimed Bye, said employee, then that arguably brings the employee within the auspices of Section 44 1 D, and the employee is entitled to leave work and not return to work until the employer has dealt with that particular danger. Mhm. Then Section 44 1 e of the Employment Rights Act 1996. This doesn't relate to evasive action. This is a more proactive approach by the employee, and it's called what it's called in effect, protective action. This is where the employee who, in circumstances of serious and imminent danger to himself or to others, uh, and when it says to others can include members of the public, tries to tackle the situation by taking steps to prevent him or others, including members of the public. For example, the employee who, having found the Hydrofluoric acid spillage on the factory floor, although somewhat I would think madly would seek to try and clear it up so as to tackle the situation and prevent harm from occurring to himself or to others again, what is the protection given to the employee in those circumstances? Again, it's that the employer must not subject that employee to any detriment or, indeed, as we've seen, dismiss them for taking or proposing to take such protective steps provided, of course. And this is an important qualification that the steps taken were appropriate in the circumstances. Whether steps are appropriate in all the circumstances will depend on the circumstances of each individual case. I can't give you a cookbook of recipes to say, circumstances where it would be appropriate or inappropriate, certainly using my Hydrofluoric example, uh, in this It strikes me that if an employee would try and clear that up without wearing any protective clothing protective clothing so as to prevent the toxicity of the fumes or burns or whatever, then the employer may well have a bona fide defense here because the employer could say, Well, yes, all right, um, we pulled you out of that area. That's the detriment, but your steps in trying to address the problem, we're not appropriate because you were doing it without the necessary protective gear. So those are the six areas within Section 44 the various categories of individuals who are protected. How does it actually work in terms of bringing an employment tribunal claim? Well, as I said earlier, if the sanction or the penalty or the treatment that is meted out to the employee is one of dismissal, then the employee can obviously bring a complaint of automatic unfair dismissal that does not require the two year qualifying service. And if it is found, of course, that the reason for the dismissal was one of the six areas that we looked at in section 44. Uh, then quite clearly, the employee will win that is the reason for the dismissal. The claim is successful there, and then, and there's no reason for the employer to then go on to consider anything to do with Section 98 4 in terms of the reasonableness of the dismissal. Once it's automatically unfair. That's it. But assuming for the moment that the that we're talking here about a detriment rather than a dismissal, uh, than the employee has the right to make a complaint to the employment tribunal. Pursuant to Sections 48 49 of the Employment Rights Act of 1990 six, that claim needs to be brought within a period of three months, subject to extension for ACAS conciliation, um, to argue that, in fact, they have been subjected to a detriment by having done one of these things that we've looked at in Section 44. The test that the tribunal applies is quite a straightforward what it, in essence, it is a but for test for causation, in other words, was the reason why the employee was subjected to the detriment. One of the six aspects that we've looked at in section 44 compensation is payable. Uh, this includes injury to feelings within this particular arena. If the employee can show that the detriment to which they have been subjected has caused injury to feelings, the tribunal is entitled to make an award for injury to feelings in accordance with the Vento guidelines. Obviously, three bands in Vento, though it is outside the scope of this, uh, particular uh, seminar, they've just changed post sixth of April of 2000 and 19, the lowest bend for the for the minor cases, the middle bracket for the more serious cases and the top bracket for those very, very serious contravention cases. However, although there is jurisdiction to award damages for injury to feelings, there is no jurisdiction in relation to this particular type of claim to award damages for personal injury. It's not like a discrimination case where Undersheriff and Klein tugs. The tribunal has the power to make an award in respect of personal injury that does not apply to claim under section 48 or 49 and finally, in some cases it will be somewhat difficult to draw the line between detriment and dismissal. Take, for example, a constructive dismissal case where there may be a series of detriments to which the employee has been subjected. Arguably, those detriments aren't the subject of a Section 48 claim if the employee then resigns and claim constructive dismissal. Arguably, that is part of the fundamental breach of contract upon which the employee would rely in establishing a constructive dismissal claim. There isn't a health and safety example of this at appellate court level, but there is in relation to whistle blowing a constructive dismissal. Whistleblowing case called me Leah and Magna Cans I, which looks at the sort of parallel lines of where detriment stops and dismissal begins. Certainly in a constructive dismissal case, it's less clear cut because the employee needs to establish the various, uh, aspects that go towards the breach of contract that lead to the resignation. Well, there we are. I hope that's been an enjoyable 30 minutes for you, I hope. If nothing else, you'll now watch casualty on BBC one, uh, and be aware of a very dangerous substance called Hydrofluoric acid. Uh, I thank you for your attention and look forward to seeing you again soon
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