Health and Safety breaches – when is it safe to dismiss?

Employers have a primary duty to ensure health and safety in the workplace and that duty is to take “all reasonable steps” to take care of safety. Given this fundamental duty of care, employers are clearly sensitive to breaches of health and safety measures which put employees or third parties at risk. But is an employee’s breach of their employer’s health and safety rules more likely to justify dismissal than other instances of gross misconduct? Are employers subject to the same requirement to show the dismissal was reasonable in all the circumstances of the case?

The recent Court of Appeal decision in the case of Newbound v Thames Water Utilities Limited gives some useful guidance on the considerations for employers contemplating dismissal for a safety breach. In this case, a site co-ordinator who inspected and maintained sewers had disregarded a new safety measure put in place by the employer. He had 34 years’ service but following a disciplinary process was dismissed by his employer for gross misconduct. Another employee who was also involved in the health and safety breach received a written warning as he was less experienced than Mr Newbound.

In considering the fairness of the dismissal and the disparity in the disciplinary sanctions the employer applied to the two employees the Court of Appeal gave some useful guidance:

• As the health and safety policy was new, employees hadn’t been trained in its significance and Mr Newbound had previously exercised his discretion regarding the use of breathing apparatus. This impacted on the fairness of the decision to dismiss as it is imperative that employees are made aware of and provided with appropriate training on any changes to existing policies or new policies if the employer wishes to be able to take action against employees who breach their terms.
• There is no special rule about assessing the reasonableness of a dismissal on conduct grounds where the alleged misconduct involves a breach of health and safety requirements. Employers must demonstrate that the decision is reasonable in all the circumstances.
• Length of service should not necessarily be considered an aggravating factor when considering gross misconduct. An experienced employee may have a clean disciplinary record spanning back many years and length of service, disciplinary record and the overall performance/attitude of an employee should all be weighed in the balance when considering what factors mitigate against their dismissal.
• The disparity of treatment of the two employees was problematic. Where there is a disparity in treatment, whether in respect of the same incident or when compared to action taken over similar, historic incidents, this disparity of treatment must be clearly justified. Employers must be careful to ensure that any disparity of treatment cannot be linked to an employee’s protected characteristic(s) as this could give rise to a discrimination claim.

Serious breaches of health and safety will often entitle an employer to fairly dismiss an employee. However, it is important that employers can demonstrate that the employee was aware that their actions were in breach of the employer’s rules, particularly where an employer wishes to take a zero tolerance approach to transgressions. Key steps for employers to take are:

• Companies need a clear and well thought out health and safety policy, tailored to their business;
• If a health and safety policy has changed this must be clearly explained to employees;
• Regular health and safety training should be given to employees in roles where health and safety is a particular issue (and whenever a health and safety policy has materially changed);
• Keep well documented evidence of training given to employees and competence achieved (just having a health and safety policy will often not be enough);
• Health and safety breaches should be documented in a log-book along with evidence of how the Company dealt with the incident and whether disciplinary action was taken; and
• The consequences of breaches of any new health and safety policy must also be clearly set out for employees.

Serious health and safety breaches can result in substantial liability for employers and reputational damage. It is therefore important that a competent health and safety representative is appointed. Employers must also remember that an employee who suffers detriment because of anything reasonable that he or she does in connection with health and safety matters can complain to an employment tribunal and claim unlimited compensation.

If you have any questions or concerns about the issues raised in this article or would like assistance in dealing with this type of issue please don’t hesitate to contact us.