Danger signs that lead to an unfair dismissal

If staff who leave work due to persistent bullying are sacked then that is
unfair dismissal, the EAT has ruled

Recent studies indicate that almost half of British employees have witnessed
bullying at work. A quarter say they have been bullied in the past five years.
The impact for employers includes low motivation, high absenteeism and reduced
productivity.

There is currently no specific employment right not to be bullied but the
law is developing in this area so that, increasingly, employers can be held
liable for bullying in the workplace.

One recent development relates to health and safety protection. Under
sections 44 and 100 of the Employment Rights Act 1996, employees have the right
not be subjected to a detriment or be unfairly dismissed on health and safety
grounds.

In particular, section 100 provides that dismissal for leaving the place of
work "in circumstances of danger which the employee reasonably believed to
be serious and imminent and which he could not reasonably be expected to
avert" is automatically unfair.

Therefore, the employer has no opportunity to argue in its defence that it
acted reasonably. There is no qualifying period of service for employees making
this claim and no limit on the amount of compensation which can be awarded.

The question is, what conditions constitute "danger" – how wide is
the scope of this protection? Is it simply where machinery is faulty or there
is a problem with the premises? The Employment Appeal Tribunal case of Harvest
Press v McCaffrey considered this.

McCaffrey was employed by Harvest Press as a machine minder working nights.
His colleague was behaving abusively towards him and, on one occasion,
McCaffrey felt so threatened he tried to telephone his manager. While doing
this his colleague became so abusive that McCaffrey left work and drove home to
call his manager.

He told the company he would not return to work until he received assurances
about his safety. The company spoke to his colleague and accepted his account
of the incident. McCaffrey was not asked for his version of events.

The company subsequently told McCaffrey that it considered that he had
resigned by walking out mid-shift and that he would be sent his P45.

First, the EAT held that McCaffrey had not been dismissed – he had simply
sought assurances about his safety. The company had treated that as a
resignation and had therefore terminated the employment relationship.

Next the EAT said that "circumstances of danger" caused by the
behaviour of co-workers was included in the section 100 protection.

The dismissal was therefore automatically unfair: McCaffrey held a
reasonable belief that he was in serious or imminent danger and could not have
averted it other than by leaving the workplace.

Implications

Persistent bullying of an employee by a colleague can amount to
"circumstances of danger", entitling the employee to walk out until
the employer has remedied the danger. If the employee is dismissed it is
automatically unfair.

Alternatively, if the employee is not dismissed but he or she resigns
because the employer refuses to investigate the perceived danger, a claim for
constructive dismissal is possible. This is because a failure to take
reasonable care over an employee’s health and safety may be a fundamental
breach of contract.

By Sarah Lamont, a partner at Bevan Ashford

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