Castano v London General Transport Services Ltd (Victimisation Detriment Health and Safety): EAT 29 Oct 2019

Unfair dismissal – automatically unfair dismissal – section 100 Employment Rights Act 1996
The Claimant was a bus operator, operating out of the Putney bus garage, who claimed he had suffered detriment and automatic unfair dismissal on health and safety grounds under Sections 44 and 100 Employment Rights Act 1996 (‘the ERA’). These claims were struck out by the ET as having no reasonable prospect of success. The Claimant appealed against that decision on three grounds: (1) whether the ET erred in concluding that the Claimant was not someone designated by the employer, for the purposes of Sections 44(1)(a) and 100(1)(a) ERA, to carry out health and safety-connected activities; (2) in the alternative, whether the ET ought to have treated the Claimant as being an employee at a place where there was no representative or safety committee for the purpose of Sections 44(1)(c)(i) and 100(1)(c)(i) ERA; (3) in the further alternative, whether the Claimant could rely on Sections 44(1)(c)(ii) and 100(1)(c)(ii) ERA, as it had not been practicable for him to access the health and safety officer at the Putney bus garage.
Held: dismissing the appeal
Ground (1): the Claimant relied on the fact that he had health and safety responsibilities as a PCV licensed driver and under his contract of the employment; he contended that the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 (which implemented EU Directive 2003/59) meant that he was effectively mandated to carry out health and safety responsibilities and this was sufficient to mean that he was ‘designated’ for the purpose of subsection (1)(a).
Neither Directive 2003/59 nor the 2007 Regulations (which were concerned with drivers’ qualifications and periodic training) gave any support for the suggestion that the Claimant was thereby ‘designated’ to carry out health and safety functions in the workplace for the purposes of Sections 44(1)(a) and 100(1)(a) ERA. As for his more general health and safety obligations as a PCV licence-holder and/or under his contract of employment, these were no more than might arise for many employees (including the Respondent’s other drivers); it did not meet the specific requirement that the Claimant had been ‘designated’ for the purpose of this protection.
Ground (2): the Claimant argued that his ‘place of work’ for the purposes of Sections 44(1)(c)(i) and 100(1)(c)(i) was his bus, not the bus garage from which he operated. That, however, was plainly unarguable, not least as his contract specified that his place of work was Putney bus garage. The fact that his job function required him to leave that place of work did not change that position. As there was already a designated health and safety representative at the Putney bus garage, the Claimant did not fall within this protection.
Ground (3): the argument pursued under this ground did not appear in the Claimant’s pleaded case below and did not seem to have been pursued before the ET. Even if the Claimant was permitted to take the point, however, it was impossible to see how his claim could be put under Sections 44(1)(c)(ii) and 100(1)(c)(ii) ERA: his case was put on the basis that he had been able to raise his health and safety concerns with the Respondent’s managers and there was no suggestion that it had not similarly been practicable for him to raise those matters with the designated health and safety representative at his place of work.
Generally, there was no error of law or approach in the ET’s reasoning and it had permissibly concluded that the Claimant’s health and safety detriment and dismissal claims had no reasonable prospect of success.

Citations:

[2019] UKEAT 0150 – 19 – 2910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 November 2022; Ref: scu.650897