Danger signs that lead to an unfair dismissal

Danger signs that lead to an unfair dismissal

first_img Previous Article Next Article If staff who leave work due to persistent bullying are sacked then that isunfair dismissal, the EAT has ruledRecent studies indicate that almost half of British employees have witnessedbullying at work. A quarter say they have been bullied in the past five years.The impact for employers includes low motivation, high absenteeism and reducedproductivity. There is currently no specific employment right not to be bullied but thelaw is developing in this area so that, increasingly, employers can be heldliable for bullying in the workplace.One recent development relates to health and safety protection. Undersections 44 and 100 of the Employment Rights Act 1996, employees have the rightnot be subjected to a detriment or be unfairly dismissed on health and safetygrounds. In particular, section 100 provides that dismissal for leaving the place ofwork “in circumstances of danger which the employee reasonably believed tobe serious and imminent and which he could not reasonably be expected toavert” is automatically unfair. Therefore, the employer has no opportunity to argue in its defence that itacted reasonably. There is no qualifying period of service for employees makingthis claim and no limit on the amount of compensation which can be awarded.The question is, what conditions constitute “danger” – how wide isthe scope of this protection? Is it simply where machinery is faulty or thereis a problem with the premises? The Employment Appeal Tribunal case of HarvestPress v McCaffrey considered this.McCaffrey was employed by Harvest Press as a machine minder working nights.His colleague was behaving abusively towards him and, on one occasion,McCaffrey felt so threatened he tried to telephone his manager. While doingthis his colleague became so abusive that McCaffrey left work and drove home tocall his manager. He told the company he would not return to work until he received assurancesabout his safety. The company spoke to his colleague and accepted his accountof the incident. McCaffrey was not asked for his version of events. The company subsequently told McCaffrey that it considered that he hadresigned by walking out mid-shift and that he would be sent his P45.First, the EAT held that McCaffrey had not been dismissed – he had simplysought assurances about his safety. The company had treated that as aresignation and had therefore terminated the employment relationship. Next the EAT said that “circumstances of danger” caused by thebehaviour of co-workers was included in the section 100 protection.The dismissal was therefore automatically unfair: McCaffrey held areasonable belief that he was in serious or imminent danger and could not haveaverted it other than by leaving the workplace.ImplicationsPersistent bullying of an employee by a colleague can amount to”circumstances of danger”, entitling the employee to walk out untilthe employer has remedied the danger. If the employee is dismissed it isautomatically unfair. Alternatively, if the employee is not dismissed but he or she resignsbecause the employer refuses to investigate the perceived danger, a claim forconstructive dismissal is possible. This is because a failure to takereasonable care over an employee’s health and safety may be a fundamentalbreach of contract.By Sarah Lamont, a partner at Bevan Ashford Related posts:No related photos. Comments are closed. Danger signs that lead to an unfair dismissalOn 21 Mar 2000 in Personnel Todaylast_img

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