A duty to dismiss for the employee’s best interest

Employers have a duty to protect employees from physical danger, even if the
employee wants to continue working

When an employer has done all that is reasonably practicable to protect its
employees from injury, but one of its employees has a personal idiosyncrasy
that renders him more susceptible to harm than others, is the employer obliged
to dismiss the employee for the sake of their health if there is no alternative
work is available?

In Coxall v Goodyear GB Limited [2002] IRLR 742, Wayne Coxall worked for
Goodyear as a paint operator. On introduction of a new spray paint, Goodyear
took all reasonably practicable precautions to protect the paint operators from
ill effects of the paint. Unfortunately, Coxall had a predisposition to asthma
and, when this came to light, the works doctor advised him to cease working
with the paint.

Neither the health & safety officer nor Coxall’s manager were made aware
of this advice. Coxall, however, chose to ignore the advice and carry on
working as he needed the money.

A month later, he collapsed and was diagnosed as suffering from occupational
asthma caused by irritant fumes at work consequent on his predisposition to
asthma. He brought a claim against Goodyear for personal injury and was awarded
£7,500.

Goodyear challenged the ruling it should have taken Coxall off the job in
the Court of Appeal.

The main authority relied on was Withers v Perry Chain Co Ltd [1961] WLR
1314. In that case, Mr Withers returned to work when it was known to him and
his employers that continuing to work would give rise to a small risk of a
recurrence or exacerbation of his existing dermatitis. The Court of Appeal held
that: "…there is no duty at common law requiring an employer to dismiss
an employee rather than retain him in employment and allowing him to earn
wages, because there may be some risk."

The Court of Appeal also considered its earlier decision in Hatton v
Sutherland [2002] IRLR 263 in which a different division of the same court had
said: "In principle, the law should not be saying to an employer that it
is his duty to sack an employee who wants to go on working for him for the
employee’s own good."

In Goodyear, the Court of Appeal said the tension between allowing a willing
employee to continue working and dismissing him for his own good can only be
resolved by reference to the facts of each case and in the light of the nature
and extent of the known risk.

In Withers, the risk was small, whereas in Goodyear the risk to Coxall’s
health was considerable. The Court of Appeal described it as a "striking
feature" of the case that not only did the works doctor advise Coxall to
cease working with the paint, but the two managers most directly involved with
his welfare both said they would have taken him off the job had they known of that
advice.

The Court of Appeal dismissed the appeal, saying "cases will
undoubtedly arise when, despite the employee’s desire to remain at work
notwithstanding his recognition of the risk he runs, the employer will
nevertheless be under a duty in law to dismiss him for his own good so as to
protect him against physical danger."

By Linda Farrell, partner Bristows

Key points

– In each case, evaluate the risk to the employee’s health of
continuing in his job

– Can the risk be minimised to an acceptable level?

– Consider alternative work that may be available

– Make an informed decision after consultation with the
employee and in the light of medical advice

– Dismissal or demotion should be treated as a last resort

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