EAT UNFAIR DISMISSAL – Automatically unfair reasons
Unfair dismissal – automatically unfair reasons – health and safety cases.
Section 100(1)(e) should be applied in two stages.
Firstly, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged.
Secondly, if the criteria are made out, the Tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.
The mere fact that an employer disagreed with an employee as to whether there were (for example) circumstances of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within section 100(1)(e). Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683 considered.
The EAT proposed a two-stage test in claims under section 100(1)(e): ‘Firstly, the tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or . . did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, s.100(1)(e) is not engaged.
Secondly, if the criteria are made out, the tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.’
Judges:
Richardson J
Citations:
[2011] UKEAT 0566 – 10 – 2206, [2011] ICR 1406, [2011] IRLR 730
Links:
Statutes:
Employment Rights Act 1996 100(1)(e)
Jurisdiction:
England and Wales
Cited by:
Cited – B v John Reid and Sons (Strucsteel) Ltd EAT 21-May-2015
EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 15 September 2022; Ref: scu.441169