When an employee is dismissed the employer usually has to be prepared to show that the reason for the dismissal was on the list of potentially fair reasons and that the employer behaved reasonably. If the employer can’t and the employee has been there for more than a year the dismissal is unfair.
In some cases if the employee can show that the reason for the dismissal was on a different list of protected reasons then the dismissal will be unfair however long the employee had been employed and however reasonable the employer’s decision.
There are a number of these automatically unfair reasons connected with health and safety. One of these is when the employee took ‘appropriate steps’ to protect himself or others from ‘serious and imminent danger’.
In a recent case a chef refused to do some cleaning in an area where some electrical work was being carried out because he thought it was dangerous. The employer thought it wasn’t dangerous and sacked him. The Employment Appeal Tribunal decided the dismissal was unfair because Parliament had intended to allow employees to remove themselves from what they reasonably consider to be dangerous situations. Whether it really is dangerous or even less whether the employer thinks it is dangerous, is irrelevant.
The Tribunal accepted that in theory at least it was possible for an employee’s dismissal to be unfair even if he hadn’t mentioned that his actions were because of some danger or other. If his actions were an appropriate response to the perceived danger and the employer dismisses because of that action then the dismissal is unfair.
Not surprisingly, the right of an employee to remove themselves from a dangerous situation does not apply to members of the armed forces; whatever the equipment they have been given.
Oudahar v Esporta Group Ltd
