Health and Safety at Work

PROTECTING HEALTH AND SAFETY AT WORK

There are far-reaching powers to protect employees concerned about their health and safety at work.

Employees can refuse to work if there they believe their health and safety is at risk (see Employment Rights Act 1996 (“ERA”), s44 (d)). Employees are also permitted to take appropriate steps to protect themselves if they believe their health and safety is at risk (s44(e). Employees must not suffer at work or be dismissed (s100) because they have tried to protect their health and safety or the health and safety of others.

The Employment Rights Act 1996

The ERA states that an employee has the right not to be subjected to any detriment by any act (or failure to act) by his employer on the ground that :

he has been designated to prevent or reduce health and safety risks and has carried these out (or proposed to carry them out) (s44(1)(a));

he is a representative for workers on health and safety matters or member of a safety committee who performed or proposed to perform any of those functions (s44(1)(b));

he took part or proposed to take part in consultation with the employer (pursuant to the Health and Safety (Consultation with Employees) Regulations 1996) (s44(1)(ba));

being an employee at a place where there was no such representative or safety committee, or there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety (s44(1)(c));

in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, (s44(1)(d)); or

in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger (s44(1)(e));

An employee will be unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that :

What is a detriment?

An employee must not suffer a detriment – as described above. An employee is subjected to a detriment if he is put at a disadvantage.

‘Detriment’ would include :

any financial disadvantage, such as being paid less, not being paid a bonus where an employee is entitled to one (or not receiving the correct bonus) or not being paid other benefits;

being required to work harder or longer;

physical disadvantage, such as requiring a reluctant employee to work unsocial hours or obliging him or her to do especially ‘dirty’ work; (see Jeremiah above (sex discrimination in the workplace));

not being promoted or not being promoted to the correct level;

bullying, which can include unfair criticism, being excluded from conversations or meetings, having projects or work unfairly taken away, unfair work assessments, being mocked or belittled;

The test is whether a reasonable worker would or might take the view that the treatment they had been to their detriment.

Previous cases have decided it is detrimental to:

deny an employee an equal opportunity for promotion (see Gallacher v Department of Transport [1994] IRLR 231, [1994] ICR 967, CA (trade union activities));

deny an employee an equal opportunity to work overtime (see Clymo v Wandsworth London Borough Council [1989] IRLR 241, [1989] ICR 250, EAT (sex discrimination));

unfairly deny an employee perquisites or other non-contractual benefits conferred on others in similar circumstances, such as a company car or a parking permit (see Carlson v Post Office [1981] IRLR 158, [1981] ICR 343, EAT (union membership));

putting the employee to work in an environment made unpleasant by the attitude or actions of fellow employees could be subjecting him or her to a detriment, at least if the employer fails to take steps which he could and should reasonably have taken to avoid, remove or reduce the unpleasantness by the employees under his control.

Making an Employment Tribunal claim

Employees can make claims to an Employment Tribunal if they have been treated unlawfully, by their employer.

There are very strict time limits – usually three months minus one day from the date of the act.

Before a claim can be made it is compulsory to tell the Advisory, Conciliation and Arbitration Service (ACAS). ACAS will try and help the parties settle the claim without going to an Employment Tribunal (see ‘Early Conciliation’ service)

If early conciliation is not successful, ACAS will send you an early conciliation certificate. You will need this when you make a claim to the tribunal

Once a certificate is received there is usually one month left to make a claim, providing ACAS has been approached within the three month period.

It is important to set out an employment claim clearly and make the correct claims. If the correct claims are not made within the time limit an Employment Tribunal may well decide that it is too late to add them in, even if they were left out in error or because an employee did not know the law.

THE EMPLOYMENT RIGHTS ACT 1996

44 Health and safety cases

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee—

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

[(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise);]

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4) … this section does not apply where the detriment in question amounts to dismissal (within the meaning of [Part X]).

100 Health and safety cases

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—