A tribunal has decided in Gizbert v ABC News Intercontinental Inc that a foreign correspondent who did not want to cover war zones was unfairly dismissed for making a health and safety complaint.
Richard Gizbert was an ABC reporter who had often worked in dangerous places. However, as his family grew, he began to decline such assignments. Gizbert was eventually dismissed by ABC in the context of a business reorganisation.
The tribunal held that ABC’s decision was partly motivated by Gizbert’s refusal to travel to and work in war zones, and that this was enough for the dismissal to fall within s.100(1)(c) of the Employment Rights Act.
The legislation provides that a dismissal will be automatically unfair if the reason (or the principal reason) for the dismissal is that the employee “brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety”. There does not have to be actual harm, the employee just has to reasonably believe that there could be harm.
The remedies hearing at which Gizbert’s compensation award will be decided has not yet taken place. Compensation for health and safety-related dismissals is not capped, and in this case is likely to be substantial. ABC may find it difficult to appeal against the decision as it is largely based on the tribunal’s assessment of the facts.
The case is interesting for HR professionals because it highlights the risks associated with requiring employees to do dangerous work and because it is a timely reminder of the need to make sure that reasons for dismissal are consistent and clearly communicated.
Avoiding the claims
The best approach to avoiding Gizbert-type claims is usually to minimise health and safety risks before concerns are raised by employees and deal with any complaints promptly. This might include:
- obtaining information about risks (eg from the foreign office or local sources)
- providing security (accompanying employees to and from the airport, insisting they stay in protected areas, providing guards etc)
- ensuring appropriate insurance cover is in place (medical, life, employer’s liability etc).
It may not be possible to remove all risks and, if this is the case and the employee reasonably refuses to do the work, the employer should not treat the employee adversely as a consequence.
If the employer wants to argue that a subsequent dismissal is not related to a health and safety complaint, it should make sure there is clear evidence of the real reason(s).
In the Gizbert case there was some dispute about the facts – and the case was lost by ABC largely because the tribunal preferred Richard Gizbert’s evidence.
Employers can limit the risk of disputes about the reasons for dismissal by communicating to employees consistently and making sure decisions are well documented in meeting notes and letters.
The statutory dismissal procedures (and any company-specific procedures) give employers an opportunity to clarify and document decisions. This is important even if the employee does not have enough service to make an ‘ordinary’ unfair dismissal complaint, given the range of claims which can now be made and the incentive for highly paid employees to make ‘special’ claims that attract uncapped compensation.
Evidence of an appropriate business reason for the dismissal will be helpful regardless of the nature of the claim.
Juliet Carp, solicitor, Speechly Bircham
Practical steps to reduce risks
- Give employees the opportunity to refuse dangerous assignments, even if dangerous work is thought to be ‘part of the job’.
- Take steps to minimise health and safety risks.
- Follow dismissal procedures even if the employee does not have enough service to make an ‘ordinary’ unfair dismissal complaint.
- Give full reasons for dismissal in writing.
For an article about how to keep your employees safe, go to personneltoday.com/30717.article