Victimisation on health and safety grounds

There are no qualifying conditions for protection under any of the above provisions. They consequently cover all "employees" employed under contracts of service or apprenticeship, irrespective of age, hours of work or length of service.

Note: The Secretary of State has the power to make orders extending the detrimental treatment provisions (s.22A-C) only to "persons other than employees" (s.149(2A) of the EP(C)A). The application of the provisions in these circumstances would be subject to any modifications or exceptions "as may be prescribed in the order". No such order has as yet been made, although we understand that the Government is in the process of preparing one in respect of "trainees" who are not "employees" as currently defined.

Meaning of "detriment"

By analogy with the interpretation of similar phrases in sex and race discrimination legislation, the term "detriment" in s.22A probably means no more than "putting the employee under a disadvantage" (see, for example, Ministry of Defence v Jeremiah).

It applies to a detriment by "any act, or any deliberate failure to act", by the employer. This covers positive actions such as reprimands or disciplinary measures. In Barton v Wandsworth Council, for example, a tribunal found that the temporary transfer of an employee to alternative work for the purpose of investigating his conduct, as well as a subsequent suspension from work and disciplinary action (which culminated in a two-year final written warning), were all capable of being "detriments" within the meaning of s.22A. It also clearly covers a failure or omission to consider an employee for a pay rise, overtime working, promotion or any other benefit (whether contractual or otherwise), or the deliberate denial of benefits or advantages afforded to others. It is interesting to note that, following the House of Lords' restrictive decision in Associated Newspapers Ltd v Wilson and Associated British Ports v Palmer and others, the protection available under s.22A is now significantly broader than that which is provided against action short of dismissal on trade union grounds.

For obvious reasons, s.22A does not generally apply "where the detriment in question amounts to a dismissal" (s.22A(4)). But there is one important exception to this principle. It is expressly provided that a dismissal which takes the form of the expiry and non-renewal of a fixed-term contract for one year or more - under which the employee has agreed in writing to waive his or her statutory unfair dismissal rights - will be a "detriment" for present purposes (ss.22A(4) and 142 of the EP(C)A).

Constructive dismissals

Section 57A, on the other hand, applies to dismissals as they are defined in s.55(2) of the EP(C)A - that is, express dismissals by an employer with or without notice (s.55(2)(a)); the expiry and non-renewal of a fixed-term contract (s.55(2)(b)) - subject to the exception just outlined); and "constructive" dismissals, whereby an employee terminates the contract, with or without notice, in response to a fundamental or repudiatory breach of contract by the employer (s.55(2)(c)).

An industrial tribunal's decision in Baddeley v Balraj Mehta t/a Supascoop , however, raises a number of questions about the proper application of s.57A in constructive dismissal cases. Ms Baddeley complained to her employer that she was being required to perform duties (in particular, carrying bulk produce) beyond her physical capacity - she was only 19 and relatively small and slightly built - which caused her both physical and mental stress. She eventually resigned and complained of automatically unfair constructive dismissal under s.57A. The tribunal found that if Ms Baddeley had complained to her employer that it was in breach of health and safety requirements, or was causing her to do something which was harmful to her health and safety, and she had been dismissed in consequence, she would have had the right to complain under s.57A(1)(c).

But any attempt to extend the protection afforded by s.57A to those complaining of constructive dismissal would, said the tribunal, be "fraught with difficulties". Whilst an employee who had action taken against her by her employer which amounted to a fundamental breach of contract because of her involvement in a protected health and safety matter might succeed in complaining of automatically unfair constructive dismissal if she resigned in consequence rather than relying on the provisions of s.22A, the same could not be said of an employee who resigned simply because the employer ignored her complaint. If Parliament had intended to enact such a "startlingly novel" right it would have been clearly spelt out in the section. The right to complain under s.57A "arises only when the employer dismisses the employee under s.55(2)(a) or (b) [of the EP(C)A] or fundamentally breaches the employee's contract as a punishment for the employee's health and safety activity, entitling the employee to resign and rely on s.55(2)(c). It does not arise where the only action of the employer about which complaint is made is the health and safety breach itself," the tribunal concluded.

Even if the tribunal's reasoning in Baddeley is in principle correct, the decision may not be as restrictive as it appears at first glance. It has been established for some time that, as part of their general contractual duty of care for the health and safety of their employees, employers are under an obligation to act reasonably in dealing with matters of safety, or complaints of lack of safety, which are drawn to their attention by those employees (British Aircraft Corporation v Austin). Unless such a complaint is obviously "not bona fide or is frivolous", an employer can only discharge its duty by investigating the matter "promptly and sensibly". A failure to do so will normally amount to a repudiatory breach of an essential contractual term. It might also be argued that an employer's persistent failure or refusal to deal with the issue in itself amounts to a "detriment" or punishment (under s.22A) imposed on the grounds of the employee's attempts to raise health and safety concerns. In these circumstances, there would seem to be no logical reason to preclude the employee from choosing to exercise his or her right to resign and rely on s.57A(1)(c).

Raising grievances

The extent to which employees are generally protected when they seek to raise health and safety problems or grievances with their employers depends largely on the approach taken to the wording of ss.22A(1)(c) and 57A(1)(c) of the EP(C)A (above). Tribunals will, as the statute requires, limit these provisions strictly to situations where there is no health and safety representative or safety committee, or where there is such a representative or committee but it was not reasonably practicable for the employee to raise the matter by those means. Employees must therefore normally be careful to follow internal procedures and raise matters through appropriate channels where these exist. For example, in Leake v Commissioners of the Inland Revenue, the employee was active in raising a petition to her employer complaining about the ventilation system in her office. The tribunal rejected her unfair dismissal complaint based on s.57A(1)(c) because there was no evidence to suggest that it was not reasonably practicable to raise the matter through her office safety representative.

Similarly, in the Barton case, the employee could not bring himself within s.22A(1)(c) because the tribunal found that there were a large number of safety bodies within his employer's organisation to which he could have brought his complaints. Although there was evidence that he had attempted to do this, the tribunal felt there was a great deal more he could have done. Since the problems about which he had persistently complained to managers (in particular, the lack of experience and training of staff who accompanied often severely disabled patients in ambulances driven by the employee) were "ongoing", he could reasonably have taken them up more extensively with his representative.

But, as that case demonstrates, if the danger to health and safety is sufficiently serious, an employee in Mr Barton's position may alternatively argue that he or she has taken "appropriate steps" to protect himself or others under the provisions of ss.22A(1)(e) or 57A(1)(e). And safety representatives, designated persons and members of safety committees have additional protection if they raise concerns as part of their health and safety duties.

Reasonable means

Under ss.22A(1)(c) and 57A(1)(c) employees must bring grievances to their employer's "attention" by "reasonable means". It would seem that those means may be direct or indirect, but they must in all cases be reasonable. Some tribunals have indicated that it would not normally be reasonable under these provisions for an employee, for example, to go "over everybody's head" within his or her employer's organisation, and raise the matter immediately and directly with an external body such as the Health and Safety Executive ("the HSE" - see Crew v Portven Ltd, where the tribunal also questioned whether the employee had raised a grievance with his or her employer at all in these circumstances).

On the other hand, in Harris v Select Timber Frame Ltd, an employee initially raised his grievance by producing a video about health and safety matters, and showing it to one of the company's directors. The employee also complained to the HSE, which visited the company and arranged for him to have a medical examination. A tribunal held that his subsequent dismissal was unfair under s.57A(1)(c). It concluded that the dismissal was prompted by his health and safety complaints (including the complaint to the HSE), and in particular the forthcoming medical examination, "coupled as it was with the threat of litigation".

Again, if the threat to health and safety is sufficiently serious, an employee may be able to justify "blowing the whistle" to an appropriate outside agency under s.22A(1)(e) or s.57A(1)(e).

Harm to health and safety

A grievance within either s.22A(1)(c) or s.57A(1)(c) must relate to "circumstances connected with his [or her] work", which the employee "reasonably believed were harmful or potentially harmful to health and safety."

In Winters v Main Aspects Ltd t/a Mid-Transport Services, an experienced heavy goods vehicle (HGV) driver reported a number of defects on lorries which he was required to drive. These included a clutch which was slipping, difficulties in engaging gears (indeed, he reported that on one trip he had had to use both hands to engage gears, so that at that moment he did not have his hands on the steering wheel) and a prop-shaft that sheered off as he tried to rejoin a motorway. The employee was dismissed two days after the last of these incidents. Upholding his unfair dismissal complaint under s.57A(1)(c), the tribunal found that all of these matters related to health and safety. It was important that vehicles, particularly HGVs, should be in a "roadworthy" condition. Since the employer had not given the employee any reason for his dismissal and the evidence indicated that the employee was competent in his work, the tribunal concluded that on the balance of probabilities the true reason for his dismissal was his health and safety complaints.

Employee's reasonable belief

Guidance on the nature of the employee's reasonable belief under these provisions was given by the EAT in Kerr v Nathan's Wastesavers Ltd. Mr Kerr was dismissed after he had expressed grave reservations about the prospect of driving a vehicle which he estimated would be overloaded by the time he finished his waste-collection round. Discussing the belief required under s.57A(1)(c), an industrial tribunal said that an applicant had to show that:

Applying that test, the tribunal accepted that Mr Kerr had honestly believed that the overloading of vehicles was potentially harmful to safety, and that he had brought this concern to his employer's attention by reasonable means (the tribunal did not therefore find that his actions amounted to an outright refusal to work). But, the tribunal continued, he did not have reasonable grounds for his belief. In particular, he had not taken account of an apparently established practice by which drivers could telephone for assistance or return to the depot as soon as they thought that their vehicle had reach its maximum permitted load.

Rejecting Mr Kerr's appeal, the EAT said that the tribunal had directed itself correctly on the law and the matters to be considered under s.57A(1)(c). This endorsement was, however, qualified by a general warning that "care should be taken not to place an onerous duty of enquiry on an employee in a case such as this. The purpose of the legislation is to protect employees who raise matters of safety about which they are concerned; and the fact that the concern might be allayed by further enquiry need not mean that it is not reasonable."

Serious and imminent danger

Similar considerations accordingly apply to those subsections designed to protect employees who leave the workplace, refuse to return to work, or take other appropriate steps "in circumstances of danger which [they] reasonably believed to be serious and imminent". Indeed, the EAT in Kerr observed that if Mr Kerr had undertaken his collection round and been dismissed on either telephoning for assistance or returning to the depot with a part load, he would have had "an unanswerable case under s.57A(1)(d)". The crucial issues to be decided under these provisions are, therefore, what amounts to "serious and imminent danger", and whether the employee's belief in such danger was "reasonable".

In Rawlings v Barraclough t/a Independent Delivery Services Ltd, Mr Rawlings was dismissed because of his persistent refusal to drive a particular van. He had discovered a hole and general rust and rot in the floor of the vehicle which, in his view, rendered it a serious danger to health and safety. His employer's response was to state that the vehicle had been "looked at and was in a safe condition". At an industrial tribunal hearing into Mr Rawlings's unfair dismissal complaint, the employer argued that there was no evidence to suggest that corrosion was an "imminent" danger, and the fact that the vehicle had been checked, and that information relayed to Mr Rawlings, must have destroyed any reasonable belief which he had held about the danger to which he was exposed.

The tribunal found that Mr Rawlings personally thought there was serious danger, namely that the condition of the van was such that the driver's seat "could at any time go through the floor", and that the rocking or potential rocking of the seat could cause him to lose control of the vehicle. During the period of his refusal to drive the van, Mr Rawlings had not had the benefit of any expert advice and it seemed to the tribunal that "s.57A(1)(d) is to some extent a subjective test as to what the applicant believed the situation to be but against that there must be some degree of objectivity and some prima facie evidence of imminent and serious danger."

Expert evidence before the tribunal indicated that the vehicle in question would have failed an MOT test, and that it was consequently unroadworthy according to the rules and regulations governing vehicle safety. In those circumstances, the tribunal felt that it could not take a contrary view. Furthermore, the assurance about the vehicle's safety which the employer had given to Mr Rawlings "was so informal and so undetailed that [he] was still entitled to hold his belief notwithstanding the fact that others had driven the van in the meantime."

And, in Roberts v E E Green Ltd, an employee was found to have been unfairly dismissed under s.57A(1)(d) when he refused to comply with his employer's instruction to clean a chemical port-a-loo. He had heard that the toilets had not been cleaned or used for a considerable time, and that they were in an unhealthy state. After seeking advice from someone who worked for a specialist port-a-loo company, the employee told his employer that he was not prepared to clean the toilets without proper safety equipment and clear guidance. An industrial tribunal found that in these circumstances "it was perfectly reasonable for [the employee] to consider... that his health would be at risk to such a serious extent that he should not proceed to carry out [his employer's request]." The tribunal observed that it would have been open to the employer to seek to reassure the employee by making appropriate enquiries about the health risk posed by the toilets either to the local environmental health office or the HSE, and providing appropriate safety equipment.

Persistent or continuing danger

It is thus clear that "serious and imminent" danger is not limited to single or one-off catastrophic events which cause obvious risks.

In the Barton case, for example, Mr Barton was employed by Wandsworth Council as an ambulance driver, transporting patients with mental and physical disabilities to and from council day-care facilities. He persistently confronted the manager of one of these facilities with his concerns about the lack of experience and training of "escorts" - who accompanied patients in transit, and were responsible for their general welfare - and the unsafe use of the "tail-lifts" which lifted wheelchair-bound patients on and off the ambulance. As a result, he was transferred to work on other routes, suspended and ultimately disciplined (see p.3, above).

On his complaint under s.22A(1)(e), an industrial tribunal found that Mr Barton believed that there were circumstances of danger that were serious and imminent, and that this belief was reasonable. There had previously been accidents (including fatalities), and the danger to patients was "ongoing". Although the matters raised by Mr Barton were being discussed within council consultative committees, nothing had been done. Indeed, the situation had been sufficiently serious to warrant concern from the HSE.

And the tribunal also had "no hesitation" in finding that the continued use of untrained escorts, with potentially serious consequences, could be described objectively as "circumstances of danger" within s.22A(1)(e). Those words do not, it said, just refer to a single situation which is about to happen. There is no reason why they cannot apply "to a dangerous situation that had been going on for some time". A dangerous situation is not one that is causing harm to somebody all the time, but rather one "that has within it features which at any moment could give rise to active serious harm because of exposure to dangerous matters." If, for instance, an electricity company laid an unprotected high-voltage cable in the middle of a highly populated area, the fact that it had been there for many months without anybody touching it would not prevent it from being a circumstance of danger.

The tribunal therefore concluded that Mr Barton had suffered a detriment on the ground that he had taken appropriate steps by raising matters to protect himself or others (that is, patients) in the face of serious and imminent danger. It rejected the council's argument that he had been disciplined primarily because of the allegedly aggressive "manner" in which he had raised his complaints, and not because of the substance of those complaints.

Characteristics of employee

Tribunals may also take into account the particular characteristics of the employee in determining whether he or she had a reasonable belief in serious and imminent danger.

For example, in Clark v Falkirk Sunbed Solarium & Ladies Health Club Ltd, a young, slightly built and inexperienced female employee (of about 16 years of age) was required to deposit rubbish in bins situated in an unlocked and unlit garage over a hundred yards from her employer's premises. Access to the garage was initially by way of an alley and then through a bus depot. The area in question was frequented by people attending a nearby nightclub and, from time to time, by gangs of youths. The employee indicated that she was concerned about her safety in these circumstances, and stated that she wished to be accompanied by another member of staff or at least kept under supervision while she made her way to deliver rubbish. This in fact occurred on a number of occasions, until she was dismissed after being told by her manager that he was "not employing two people to do one job".

Upholding her complaint under s.57A(1)(e), an industrial tribunal found that in the circumstances she had a reasonable apprehension of danger. "Such is the tenor of modern life," said the tribunal, "that every possible reasonable protection should be made for the safety of young girls in employment, particularly where that employment environment impinges on public places which are neither well lit nor secure." Her request to be accompanied or supervised had not been unreasonable, she had not refused outright to comply with her employer's instruction and it did not matter that a mature employee of "considerably more experience" had felt that there was minimal danger.

Complaints and remedies

We turn now to consider in outline the time limits for complaints under ss.22A and 57A respectively, the burden of proof in such proceedings, and the remedies available to the successful complainant.

Time limits

Detrimental treatment: An employee may complain to an industrial tribunal "on the ground that [he or she] has been subjected to a detriment in contravention of s.22A" (s.22B(1)). Such a complaint must be made before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure to act is part of a series of similar acts or failures, the last of them (s.22B(3)(a)). If the tribunal is of the opinion that it was not reasonably practicable for the employee to present a complaint within the three-month period, it may hear a complaint within such further period as it considers reasonable.

Where an act extends over a period, the "date of the act" means the last day of that period, and a deliberate failure to act is to be treated as being done when it was decided on by an employer. In the absence of evidence to the contrary, an employer shall be taken to decide on a failure to act when it does an act which is inconsistent with doing the failed act or, if it has done no such inconsistent act, when the period expires within which it might reasonably have been expected to do the failed act if it was to be done (s.22B(4)).

The reference to acts extending over a period appears to give full recognition to the problem of continuing discrimination in the sense understood in race and sex discrimination law and, in particular, in the Court of Appeal's decision in Barclays Bank plc v Kapur and others. So, for example, a discriminatory failure to award a pay increase (or the withholding of any other benefit) on the prohibited health and safety grounds will continue for as long as any differential is maintained, and an action may be brought at the end of that period.

The rather tortuous wording on a deliberate failure to act means merely that if, for example, an employee claims that he or she was denied promotion because he or she exercised the right to leave the workplace (or because of the time spent on his or her safety duties), the time limit runs either from the point at which the employer promotes another candidate or from the expiry of the period within which the employer might reasonably have been expected to make an appointment.

Unfair dismissal: An unfair dismissal complaint must be brought within the normal three-month period beginning with the effective date of termination of employment. This period may be extended in the usual way if the tribunal is satisfied that it was not reasonably practicable for the complainant to present the complaint in time (s.67(2) of the EP(C)A).

Burden of proof

Detrimental treatment: On a complaint alleging a breach of s.22A, it is for the employer to show, on the balance of probabilities, the grounds on which any act, or deliberate failure to act, was done (s.22B(2)). According to the industrial tribunal in Barton, this means that the employer must show both the reasons for doing any act as may be proved to have caused detriment, and to show that such reasons did not form one of the statutory grounds.

Unfair dismissal: The burden of proving the reason for dismissal will differ depending upon whether or not the employee can establish two years' continuity of employment.

It should be borne in mind that even if the employer discharges its burden and establishes an admissible non-health-and-safety reason, this merely prevents a finding of automatically unfair dismissal. The tribunal will still have to consider the reasonableness of the dismissal under the general principles laid down in s.57(3).

This approach was applied in Crew v Portven, where an industrial tribunal was not satisfied that the true reason for dismissal was one of the protected health and safety matters. In reaching that conclusion, the tribunal accepted the employer's evidence that the employee had been recruited on a short fixed-term contract and that no alternative work was available when that contract expired. In Winters v Main Aspects (p.4, above), however, the tribunal warned that where employees complain under s.57A within the two-year qualifying period, employers will generally be expected to produce some evidence to challenge that claim.

Remedies

Detrimental treatment: Where a tribunal finds that a complaint under s.22B of the EP(C)A is well founded, it must make a declaration and may award compensation to the employee in respect of the act or failure to act complained of (s.22C(1)).

Compensation will be an amount which the tribunal considers "just and equitable in all the circumstances" having regard to the infringement complained of, and to any loss sustained which is attributable to the act or failure which infringed the employee's rights (s.22C(2)). This loss will include expenses reasonably incurred by the employee in consequence of the act or failure complained of, the loss of any benefit which the employee might reasonably have expected to have had but for that act or failure (s.22C(3)) and, presumably, injury to feelings (for example, for the stress engendered by the situation - see Brassington v Cauldon Wholesale Ltd). In ascertaining the employee's loss, a tribunal will apply the same rule concerning the duty of a person to mitigate his or her loss as applies in common law damages claims (s.22C(4)). There is no limit on the amount of compensation available under these provisions.

Where a tribunal finds that the act or failure complained of was to any extent caused or contributed to by any action of the employee, it has the discretion to reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding (s.22C(5)). For example, the tribunal in Barton indicated that a reduction might legitimately be made under this provision if it was shown that the allegedly aggressive or confrontational "manner" in which the employee had made his complaints to managers had "contributed substantially to what happened".

Unfair dismissal: The remedies for unfairly dismissed employees will vary depending upon which of the health and safety provisions they rely in bringing their complaint.

1. If an employee is dismissed, or selected for redundancy, because he or she stopped the job, or took appropriate steps to protect himself or herself or other persons from danger, or raised a health and safety grievance with his or her employer (s.57A(1)(c)-(e)), the normal unfair dismissal remedies - that is, reinstatement, re-engagement or compensation - are available. Where compensation is awarded, the basic and compensatory awards will be calculated in the usual way and subject to the current statutory maxima.

2. An employee who is dismissed for carrying out, or proposing to carry out, his or her duties as a "designated" person, safety representative (whether under statute or by employer agreement) or member of a safety committee (s.57A(1)(a) and (b)), has the following additional remedies:

If, however, the employer fails to attend the hearing of the application for interim relief, or states that it is unwilling to reinstate or re-engage the employee, the tribunal must make an order for the continuation of the contract of employment from the date of termination until the date of determination or settlement of the complaint. In the case of re-engagement, the tribunal must ask the employee if he or she is willing to accept the job on the terms specified by the employer. Where the employee refuses the job offered, the tribunal will only order continuation of the contract if it is of the opinion that the refusal is reasonable.

An order for the continuation of the contract of employment is an order that the contract remains in force "for the purposes of pay or of any other benefit derived from the employment, seniority, pension rights and other similar matters", and for the purpose of determining the employee's continuity of employment.

A tribunal may, however, decide that it is just and equitable to reduce this figure to reflect conduct of the employee which caused or contributed to his or her dismissal (s.73(7B)). But if the employee was selected for redundancy for a s.57A(1)(a) or (b) reason, any reduction is applied only to that part of the award which is solely attributable to the application of the £2,770 minimum. (For example, if the employee would otherwise be entitled to a basic award of £840, the reduction will be applied only to the balance of £1,930 - see s.73(7C).)

-if re-employment is sought but not ordered, the award will be 104 5 an actual week's pay or £13,775, whichever is the greater, up to a maximum of £27,500.

-if re-employment is ordered but not complied with by the employer, then (unless the employer satisfies the tribunal that re-employment was not practicable) the award is increased to 156 5 an actual week's pay or £20,600, whichever is the greater (with no maximum).

No special award is payable, however, if the employee was selected for redundancy on one of the relevant health and safety grounds, and he or she unreasonably refused the employer's offer to renew his or her contract, or to re-engage him or her in suitable alternative employment (whether immediately or by unreasonably terminating such employment during the statutory four-week trial period); or the contract has been renewed, or the employee has been re-engaged under a new contract of employment in pursuance of the employer's offer of suitable alternative employment (see ss.72(2)(b), 73(2), 82(5) and (6) and s.84(1) of the EP(C)A).

Health and safety victimisation - a summary

CASE LIST

Associated Newspapers Ltd v Wilson and Associated British Ports v Palmer and others [1995] IRLR 258

Baddeley v Balraj Mehta t/a Supascoop 6.1.95 COIT 46041/94

Barclays Bank plc v Kapur and others [1989] IRLR 387; [1991] IRLR 136 (HL)

Barton v Wandsworth Council 12.7.95 COIT 11268/94

Brassington v Cauldon Wholesale Ltd [1977] IRLR 478

British Aircraft Corporation v Austin [1978] IRLR 332

Clark v Falkirk Sunbed Solarium & Ladies Health Club Ltd 8.2.95 (S)COIT S/505794

Crew v Portven Ltd 13.7.95 COIT 63784/94

Harris v Select Timber Frame Ltd 14.3.94 COIT 59214/93

Kerr v Nathan's Wastesavers Ltd 27.6.95 COIT EAT 91/95

Leake v Commissioners of the Inland Revenue 27.1.95 COIT 16889/94

Maund v Penwith District Council [1984] IRLR 24

Ministry of Defence v Jeremiah [1979] IRLR 436

Rawlings v Barraclough t/a Independent Delivery Services Ltd 2.5.95 COIT 60178/93

Roberts v E E Green Ltd 7.7.95 COIT 15595/95

Smith v Hayle Town Council [1978] IRLR 413

Winters v Main Aspects Ltd t/a Mid-Transport Services 31.10.94 COIT 42114/94