16 August 2011

Don’t stumble over safety

Managers must carefully negotiate several key areas where health and safety legislation overlaps with employment regulations to avoid falling foul of the law, as Jessica Calcott explains

While most employers are well aware of their extensive responsibilities to employees under the Health and Safety at Work Act 1974 and related regulations, there are
other provisions related to health and safety under general employment law which could cause difficulties if companies do not tread carefully.

Statutory rights of representatives
Where the employer has a recognised trade union, it must inform and consult with the union's appointed health and safety representatives about a range of issues
including maintaining, promoting and monitoring health and safety measures in the workplace.

In the absence of a recognised union, the employer must either arrange for representatives to be elected by staff or must consult with the workforce as a whole on health and safety matters. Given the importance of health and safety in the workplace, representatives enjoy a number of specific rights to facilitate the effective performance of their role including, in particular,
? the right to be provided with facilities to enable them to carry out their duties
? the right to take time off work, with pay, to fulfil their representative functions
? the right to paid time off to undergo training to fulfil their role.

Health and safety representatives also have the right not to be dismissed or treated less favourably because of their status or activities as a health and safety representative.

Unfair dismissal: health and safety
Of course, it is not only designated health and safety representatives who enjoy protection from detriment or dismissal for health and safety reasons. Any employee, irrespective of their length of service, who is dismissed or subjected to a detriment for certain health and safety reasons, would have a potential claim against their employer.

There have been relatively few reported cases on health and safety dismissals but a recent case in the Employment Appeal Tribunal – Oudahar v Esporta Group – has provided some guidance on the correct approach and confirmed that it is the employee's perception of danger that is relevant, not the employer's. In this case, the employee was dismissed for insubordination for refusing to carry out his manager's instructions to mop an area where there were exposed wires. Even though the
manager did not consider there was any danger (and may, in fact, have been correct), Oudahar's dismissal was automatically unfair because he had a genuine and reasonable belief that there was a risk when he refused to follow his manager's instructions.

Unfair dismissal: whistleblowing
All employees, again irrespective of length of service, may also qualify for protection as a 'whistleblower' if they raise concerns about health and safety with their employer, with the Health and Safety Executive, or (in the most serious cases only) to other external parties such as the media.

Where an employee makes a protected disclosure about health and safety risks, either to themselves or to others, they would have a claim against their employer if they suffer detriment or dismissal as a result.

Wider implications
The law on unfair dismissal, both for health and safety reasons and for whistleblowing, has wider potential implications for employers than just cases where there is a risk of physical harm being caused. For example, an employee may have signed a perfectly valid agreement to opt out of the maximum average 48-hour working week under the Working Time Regulations, but may still decline to work very long hours, or in stressful circumstances, if they believe that this would pose a risk to their mental health and wellbeing.

And, of course, underlying the various specific pieces of legislation regarding health and safety, unfair dismissal and whistleblowing, etc, is the common law duty of
care of all employers to have regard to their employees' safety and the implied contractual duty of mutual trust and confidence. If breached, this may entitle an employee to resign and claim constructive dismissal.

With all this in mind, the importance and value of maintaining a safe, healthy, reasonably stress-free workplace cannot be overstated.

Jessica Calcott is senior legal adviser at manufacturers' organisation EEF: www.eef.org.uk

Author
Jessica Calcott

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