Unfair dismissal qualifying period: case study 2

Amy Ballinger and Emily Knight of Clyde & Co LLP conclude a series of articles on the unfair dismissal qualifying period with a second case study, which looks at a situation in which an employer dismisses a new employee for refusing to carry out her duties because she believes that there is a health and safety risk. Despite her short service, the employee is able to claim unfair dismissal. 

Pauline joins Great Insurance Ltd on 10 April 2012, as an office assistant in the claims department.  One of Pauline's duties is to deliver hard copies of customer files to other departments in the building several times a day. Around the time of her joining the company, it embarks on a refurbishment of the building. Pauline complains to her manager, Tony, that, on the route that she has to take to deliver the files, there are wires on the floor and boxes in the way. She says that they create a health and safety hazard. As there is no alternative route through the building, she refuses to deliver the files. Tony asks her three times to do so. He does not think that there are any risks attached to walking through the building.

Tony thinks that Pauline's refusal to carry out his instructions amounts to misconduct. He deals with this as a disciplinary matter. On 1 May, he dismisses Pauline for insubordination. He assumes that there is no risk that Pauline could bring a claim of unfair dismissal against the company because she has short service.

Is Tony correct or could Pauline claim unfair dismissal against Great Insurance Ltd?

Employees must generally have a minimum period of continuous service at their effective date of termination to be able to claim unfair dismissal. This period increased from one year to two years on 6 April 2012 (see Unfair dismissal qualifying period: overview in this series for more details). Pauline started work with Great Insurance Ltd on 10 April. Therefore, she would normally need at least two years' service to be able to bring a claim.

However, Tony cannot rely on Pauline's short service to be correct that she will be unable to claim unfair dismissal. Section 108(3) of the Employment Rights Act 1996 sets out a number of exceptions to the qualifying service requirement (see Unfair dismissal qualifying period: exceptions). These exceptions concern reasons for dismissal that are automatically unfair and include dismissals related to family leave, the making of protected disclosures and for asserting a statutory right. Health-and-safety-related dismissals that come within s.100 of the Act (and are therefore automatically unfair) are also excluded from the requirement to have a minimum period of qualifying service for the employee to be able to claim unfair dismissal.

Section 100 of the Act protects employees against dismissal for complaining about, or refusing to work in, unsafe conditions. An employer will automatically unfairly dismiss an employee under s.100 (and the employee will require no qualifying period of service to bring a claim) if the reason or principal reason for the dismissal is that:

• the employee carried out, or proposed to carry out, activities connected with preventing or reducing risks to health and safety at work, having been designated by the employer to do so (s.100(1)(a));
• the employee performed, or proposed to perform, the functions of a health and safety representative or member of a safety committee, either in accordance with arrangements established by statute or after being acknowledged as such by the employer (s.100(1)(b));
• the employee took part, or proposed to take part, in consultations with the employer in accordance with the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513) or in an election of safety representatives within the meaning of those Regulations (whether as a candidate or otherwise) (s.100(1)(ba));
• the employee brought to the employer's attention, by reasonable means, circumstances connected to his or her work that the employee reasonably believed were harmful or potentially harmful to health or safety, where there was no health and safety representative or safety committee or it was not reasonably practicable for the employee to raise the matter by those means (s.100(1)(c));
• in circumstances of danger that he or she reasonably believed to be serious and imminent and that he or she could not reasonably have been expected to avert, the employee left, proposed to leave or (while the danger persisted) refused to return to, the place of work or any dangerous part of the place of work (s.100(1)(d)); or
• in circumstances of danger that he or she reasonably believed to be serious and imminent, the employee took, or proposed to take, appropriate steps to protect him- or herself or other persons from danger (s.100(1)(e)).

Pauline could bring a claim against Great Insurance Ltd under s.100(1)(e) of the Act and allege that she was dismissed for taking appropriate steps (ie by refusing to walk through the parts of the building where there were wires and boxes on the floor, to deliver the files) to protect herself from the danger of tripping or falling.

Pauline brings a claim against Great Insurance Ltd for automatically unfair dismissal. She claims that she refused to comply with Tony's instructions for health and safety reasons and the company dismissed her because of this. In its response to the claim, Great Insurance Ltd denies that there was a health and safety risk and submits that the reason for Pauline's dismissal was her refusal to follow reasonable instructions. The company believes that it can avoid liability because Tony genuinely believed that there was no danger. Is the company correct?

A recent case, Oudahar v Esporta Group Ltd [2011] IRLR 730 EAT, has confirmed that it is irrelevant, when determining liability under s.100 of the Employment Rights Act 1996, whether or not the employer disagrees with the employee about the existence of danger or the appropriateness of the steps that he or she took. The Employment Appeal Tribunal set out the test that employment tribunals considering claims under s.100(1)(e) should apply. First, a tribunal should consider whether or not there were circumstances of danger that the employee reasonably believed to be serious and imminent, and whether or not the employee took appropriate steps to protect him- or herself. Second, it should consider if the employer's sole or principal reason for the dismissal was that the employee took or proposed to take those steps. If it was, the dismissal is unfair.

At the employment tribunal, Pauline could argue that she reasonably believed that the wires and boxes on her route represented a serious and imminent health and safety risk to her. By raising her concerns with Tony and refusing to deliver the files she could argue that she took appropriate steps to communicate the risks to her employer and protect herself from those risks. The tribunal would not need to consider Tony's view in relation to the serious and imminent nature of the health and safety risk; the key would be whether or not Pauline reasonably believed that there were serious and imminent circumstances of danger. The test as to what constitutes a "reasonable belief" by Pauline and whether or not the circumstances were "serious and imminent" is an objective one that the tribunal will apply.

If the tribunal agrees that Pauline was reasonable in her belief and that Great Insurance Ltd dismissed her because she refused to perform the part of her role that she thought put her at risk, her claim for automatically unfair dismissal is likely to succeed.

Pauline wins her unfair dismissal claim against Great Insurance Ltd. The remedies hearing is listed to take place in one month. Great Insurance Ltd's management board wants to know how much compensation the tribunal might award.

The employment tribunal awarding Pauline compensation must make a basic award (calculated in the same way as statutory redundancy pay) and a compensatory award. The amount of the compensatory award will be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss that Pauline has sustained due to her dismissal and that is attributable to Great Insurance Ltd's actions. The statutory cap on the compensatory award (set at £72,300 from 1 February 2012) does not apply to an award for an automatically unfair dismissal under s.100.

The next topic of the week article will be the first in a new series on time off for public duties and will be published on 12 June.

Amy Ballinger (Amy.Ballinger@clydeco.com) is a senior associate and Emily Knight (Emily.Knight@clydeco.com) is a trainee solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.