Abusive behaviour can be a workplace hazard

Health and safety at work legislation extends beyond the obvious dangers to
include threats by colleagues

It is automatically unfair to dismiss an employee who refuses to work where
there is a serious risk to his or her health and safety. The extent to which
this protection extends is considered by the EAT in Harvest Press v McCaffrey,
1999.

McCaffrey was employed by Harvest Press in late June 1998 as a machine
minder. He worked on the night shift with Huson, another machine minder, who
was considerably younger than himself.

About three months after he started working, McCaffrey complained about
Huson to management. When Huson found out about the complaint he became abusive
and, when McCaffrey tried to telephone his manager, Huson stood close to him
and carried on shouting abuse.

McCaffrey was extremely alarmed by Huson’s behaviour and feared for his
health and safety, so he immediately went home and telephoned his manager from
there. He told him what had happened and said he would return to work only if
he was given assurances about his safety.

The incident was investigated by a company director who, without interviewing
McCaffrey, accepted Huson’s version of events. The next day he advised
McCaffrey that the company considered he had resigned by walking out in the
middle of a shift and he would be sent his P45.

Subsequently McCaffrey complained that he had been unfairly dismissed under
section 100 (1) (d) of the Employment Rights Act, 1996. This states that it is
automatically unfair to dismiss an employee if "in circumstances of danger
which the employee reasonably believes to be serious and imminent and which he
could not reasonably have been expected to avert, he left… or (while the
danger persisted) refused to return to his place of work or any dangerous part
of his place of work".

The tribunal upheld McCaffrey’s complaint. It decided he had not terminated
his employment but had sought assurance for his safety, which the employer had
refused.

The tribunal also found that when McCaffrey left the shift he was acting
under a reasonable belief that there was a serious danger to his health and
safety. He was reasonable in refusing to return without reassurance.

The employer appealed on the grounds that the "danger"
contemplated by the statutory provisions did not include those caused by the
actions of other staff but was limited to the dangers of the workplace itself.

EAT decision

Dismissing the appeal, the EAT ruled:

• The tribunal had concluded correctly that the statutory protection in
health and safety cases covers dangers caused "by the behaviour of other
employees".

• The tribunal was entitled to conclude on the evidence that terminating
McCaffrey’s employment after he had left the workplace because of the
threatening and abusive behaviour of another employee was automatically unfair
under section 100 (l) (d) of the Employment Rights Act.

In Masiak v City Restaurants (UK), 1999, the EAT ruled that it was
automatically unfair under section 100 (1) (e) of the same Act to dismiss an
employee who refused to cook food which he considered was a potential hazard to
the public. The reference to "other persons" in that section extended
to protecting the public from a serious health hazard.

Anthony Korn is a barrister at Barnards Inn Chambers

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