Determination whether dismissal fair or unfair - Dismissal for misconduct - Employee failing to follow instruction and being dismissed

Oudahar v Esporta Group Ltd: EAT (Judge Richardson, Mr D Evans, Mr B Warman): 22 July 2011

Section 100 of the Employment Rights Act 1996, so far as material, provides: ‘(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that… (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.’

The employee was employed by the employer as a chef at their health club from January 2008 until his dismissal in December 2008 for failing to follow cleaning instructions. The employer had contended that his reason for not following the relevant instruction was health and safety. The employee brought a claim before the employment tribunal.

The tribunal found that the employee’s dismissal did not fall within section 100(1)(e) of the Employment Rights Act 1996 because the employer, having investigated the contention about health and safety, had preferred the account of the witness who had said there was no risk to health and safety. The employer had therefore dismissed the employee for failing to follow a reasonable instruction. The employee appealed.

The employee submitted that the tribunal had not applied section 100(1)(e) properly as it had introduced an irrelevant element to the statutory test by placing weight on the employer’s belief that there was no danger. The appeal would be allowed.

In construing section 100(1)(e) of the act, the mere fact that an employer disagreed with an employee as to whether there were circumstances of danger was irrelevant. The intention of parliament was that an employee should be protected from dismissal if he took, or proposed to take, steps falling within that section. First, a tribunal should consider whether the criteria set out in that provision had been met, as a matter of fact.

If those criteria were not satisfied, section 100(1)(e) was not engaged. Second, if the criteria were made out, a tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal had to be regarded as unfair (see [25]-[27] of the judgment).

Each subsection of section 100 of the act was directed to some activity on the part of the employee. In each case the statutory provision directed the tribunal to consider the employee’s state of mind when he engaged in the activity in question. In no case did it direct the tribunal to consider whether the employer agreed with the employee (see [29]-[30] of the judgment).

In the instant case, the tribunal had analysed the law incorrectly. It was not enough for the tribunal to accept the employer’s analysis of the situation on the basis of witness evidence. In so doing, the tribunal neglected to resolve the issues of fact as to the employee’s actions and reasons to carry out the task itself.

The tribunal should have adopted the two-stage approach. First, it should have considered whether there were circumstances of danger which the employee had reasonably believed to be ­serious and imminent which he had taken or proposed to take appropriate steps to protect himself or other persons from the danger or to communicate these circumstances by appropriate means to his employer.

Second, if these criteria had been made out, the tribunal should then have considered whether the sole or principal reason for dismissal was that the employee took or proposed to take the steps in question. The tribunal had reached a conclusion on the second question, but it had not reached a conclusion on the first (see [39]-[42] of the judgment). The matter would be remitted to the same tribunal to receive further submissions and make the findings required to resolve the issues (see [43] of the judgment). Balfour Kilpatrick Ltd v Acheson [2003] All ER (D) 15 (Apr) considered.

Michael Reed (instructed by the Free Representation Unit) for the employee; Martyn West (instructed by Peninsula Business Services) for the employer.