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Employment tribunals - automatic unfair dismissal - health and safety

This advice applies to Scotland

When a tribunal looks at your claim for dismissal, there are certain legal tests that they will apply. One of these tests is how long you've worked for your employer. Usually, you can only make a claim for unfair dismissal when you've worked for your employer for a certain length of time.

However, there are certain reasons for dismissal which a tribunal will decide are automatically unfair and you can still claim regardless of how long you have worked for your employer.

If you have been dismissed because you took action about a health and safety issue, you can make a claim for automatic unfair dismissal.

This page tells you more about dismissals because of a health and safety issue.

If you have been dismissed because of a health and safety issue

You have the right not to be dismissed if you complain about or refuse to work in unsafe working conditions. If you can show a tribunal that the main or only reason you were dismissed was for taking action over a health and safety issue, your dismissal will be automatically unfair.

You'll be able to make a claim regardless of how long you've worked for your employer. Your employer can't escape liability by arguing that is was reasonable to dismiss you in the circumstances.

Taking action over health and safety issues includes:

  • carrying out any health and safety activities which you have been asked to do by your employer
  • performing or proposing to perform any functions as a health and safety official. This could include things such as advising another employee not to work at a piece of machinery until adequate safety measures have been taken
  • bringing a reasonable health and safety concern to your employer's attention if there is no recognised health and safety representative available
  • leaving your workplace because you believe you are in serious and imminent danger which could not be avoided
  • taking appropriate steps to protect yourself or other people because you believe they are in serious and imminent danger. For example, you might refuse to drive a lorry because you believe the brakes are defective and likely to cause an accident.

How can you prove your dismissal was for a health and safety reason?

When the tribunal decides whether your dismissal was for health and safety reasons, they will look at why you acted as you did and why your employer acted as they did.

If your employer doesn't know that you have taken action because of a health and safety issue, they can't have dismissed you because of this. For your claim of automatic unfair dismissal to succeed, it's essential that you made it clear to your employer that you were taking action for this reason.

Example

A group of employees were dismissed for failing to attend work. The men left the building site they were working on because of health and safety concerns and told the employer they would not return until the issues had been dealt with. The employer dismissed them.

The employer said the men hadn't been dismissed because of health and safety concerns, but because they hadn't attended work. The employer also argued that if the men had been absent for other reasons, they would still have been dismissed.

However, because the employer knew the reason why the men had refused to return to work was for health and safety concerns, and had dismissed them for that reason, this was automatic unfair dismissal. The fact that the employer might have dismissed them if they hadn't been at work for another reason was irrelevant.

Other examples of where tribunals have found that an employee has been automatically unfairly dismissed for a health and safety reason include:

  • an employee was asked to drive a truck with no wing mirrors. When he refused he was dismissed
  • an employee who worked in the food industry was not given protective gloves despite repeatedly asking for them. She suffered sickness and had to stop working as a result
  • an electrician was told by his supervisor to carry on working despite knowing that the work was dangerous because it involved handling live wires and illegally isolating the power without the authority of the power company. He was dismissed when he refused to do this.

If you've a medical condition and you are dismissed because of it

If you're dismissed because you've a medical condition, so that either your health or the health of other employees is put at risk if you carry on working, this won't count as automatic unfair dismissal for a health and safety reason.

For example, you've got psoriasis and can't wear the protective clothing you need to at work. If your employer can't find you another suitable job where you don't need to wear protective clothing and dismisses you, this would not be automatic unfair dismissal.

However, if your employer doesn't properly investigate finding other work for you, or make other reasonable adjustments to allow you to carry on working, this could be disability discrimination. You may be able to make a claim to a tribunal on these grounds.

Next steps

Other useful information

  • Information about raising a health and safety concern with your employer on the Health and Safety Executive website at www.hse.gov.uk

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