1/ Following a judgment on health & safety dismissals and a judgment on separability, the President's decision in Sinclair v Trackwork combines the 2 - a decision on separability in a health & safety dismissal context. assets.publishing.service.gov.uk/media/608983d3…
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2/ S was a track maintenance supervisor, required to implement a safe system of work procedure. He was given a mandate to implement a Network Rail safety system, NR019. Trackworks didn't tell S's colleagues he'd been given this mandate.
3/ C implemented the safety system diligently, which caused friction & caused colleagues to raise concerns with management. Due to the upset & friction Trackworks decided to dismiss S. S claimed this was automatically unfair under ERA s.100(1).
4/ The ET found the dismissal wasn't because S was carrying out health & safety activities but because of the upset his approach to implementing the safety system had caused. It said it made this finding with a 'heavy heart'!
5/ The EAT allowed S's appeal. 1st, it looked at the test under s.100(1)(a), holding 2 questions needed to be asked: (i) are the criteria in the section met as a matter of fact; (ii) if yes, was the sole or principal reason for the dismissal the carrying out of those activities.
6/ In considering the separability case law, the EAT looked particularly at Goodwin v Cabletel, in which that issue was considered in a health & safety activity context. The EAT drew the following principles from that case from which separability could occur, but rarely:
7/ In S's case, the EAT found that the high threshold for separability in a health & safety case hadn't been met. S was diligently carrying out his H&S task. The upset resulted from Trackworks' mismanagement of the situation & of everyone's expectations not from any malice by S.
8/ Part of the mischief necessitating the s.100 protection is that implementing H&S rules often will be resisted or regarded as unwelcome. The protection would be undermined if that upset could be relied on as a reason to dismiss.
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