In the case of Oudahar v Esporta Group Ltd [2011], the claimant was a chef. The respondent had some electrical work undertaken in the workplace and the claimant asserted that there were unsecured electrical cables. As a result and contrary to the respondent’s instructions, the claimant refused to mop the floor near this area, for fear of his own safety.
The claimant was suspended as a result and, in the investigation which followed, a witness asserted that the claimant was in no danger in the area in question and had not at the time conveyed that he was in any danger. The claimant was dismissed on the basis that he (i) did not observe food hygiene practices, and (ii) failed to obey instructions. The employee relied on the Employment Rights Act 1996, s100(1)(e): “(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.” Decision The Employment Tribunal (ET) ruled that the claimant’s dismissal did not fall within s100(1)(e) by reason of the fact that the respondent had investigated the health and safety risk and found there was none, as conveyed by the witness.
The result was that the employee was being dismissed for a failure to follow reasonable management instructions. The respondent appealed against the decision. Appeal The Employment Appeal Tribunal (EAT) ruled that the ET had failed to properly apply s100(1)(e). The EAT said that the ET needed to consider (i) whether there were circumstances of danger which the employee reasonably believed to be serious and imminent and whether he took or proposed to take appropriate steps to protect himself, and (if the criteria were made out) (ii) whether the employer’s only or main reason for dismissing the employee was that the employee took or proposed to take such steps. If it was, the dismissal must be regarded as unfair. The Tribunal reached a conclusion on this second question but it did not reach a conclusion on the first.
Also, the mere fact that the employer disagreed with the claimant as to whether there were circumstances of danger, or whether the steps were appropriate, was irrelevant. The appeal was allowed and returned to the ET for reconsideration.
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