Many businesses are now or shortly to be re-opening following the latest guidance from the Government. Whilst the guidelines are there to be followed they do not replace the statutory obligations of an employer nor do they dilute the statutory protections of the employee.
Section 100 of the Employment Rights Act 1996 [the ERA] protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is covered by one of the sections 100(1)(a) to 100(1)(e). Each section specifies particular criteria that have to be met.
For the purposes of this briefing note the three sections are:
Section 100(1)(c) of the ERA 1996 protects employees who use reasonable means to bring their employer’s attention to circumstances connected with their work that they reasonably believe are harmful or potentially harmful to health and safety.
Section 100(1)(d) protects employees who are dismissed because, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or the dangerous part of the workplace.
Section 100(1)(e) protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger.
The appropriateness of the employee’s steps is to be judged by all the circumstances, including their knowledge and the facilities and advice available to them at that time (section 100(2)).
The dismissal will not be automatically unfair if the employer can show that it was (or would have been) so negligent of the employee to take those steps (or have proposed to take those steps) that a reasonable employer might have dismissed them for taking or proposing to take them.
The protection afforded by section 100(1)(e) does not depend on whether the employer believes in the presence of danger but how the employee honestly and reasonably regards the situation; it is the employee’s state of mind that is relevant, not the employer’s. It has been confirmed that “if an employee was liable to dismissal merely because his employer disagreed with his account of the facts or his opinion as to the action required, the statutory provisions would give the employee little protection”.
The Employment Appeal Tribunal [the EAT] has confirmed that the tribunal should adopt a two-stage test to cases falling within section 100(1)(e), asking:
It is of particular interest to note that such a dismissal in the circumstances set out above is automatic, meaning that the employee does not have to establish any continuity of service e.g. two years which is the normal length of service to be established in most claims for unfair dismissal.