MOrsel: Dismissal for a health and safety issue
23 October 2019
In Guernsey when an employee has less than one year's service, they are unable to make a claim for Unfair Dismissal unless they can link their claim to one of a number of grounds for automatic unfairness. For example, if the employee can show their dismissal was connected to a health and safety reason as defined under the Employment Protection (Guernsey) Law (as amended) 1998 (the Law), then their dismissal will be automatically unfair and the employee will be able to claim six months' wages against their employer even if they have only been employed for a short-time.
Regency Bedding Limited (represented by Ms Katherine Raison of Mourant) was recently successful in defending this type of health and safety dismissal claim in the matter of Mr Brian Allen v Regency Bedding Limited. A link to the case is here.
Mr Allen alleged that the reason (or principal reason) for his constructive dismissal was connected to health and safety concerns. The claim was dismissed on all grounds, with the Tribunal concluding that the claim was misguided and not made in good faith. Regency was praised by the Tribunal, who were persuaded that its managing director, Mr Ben Swan, was knowledgeable about his business and the health and safety requirements in relation to each role.
Key points include:
1. Mr Allen resigned. He was not dismissed. The Tribunal determined that whether a breach of health and safety would constitute a fundamental breach (and thus one where constructive dismissal could be alleged) would depend on fact or degree in each case;
2. As Mr Allen did not have enough qualifying period (1 years' service) to bring an ordinary unfair dismissal claim, the burden of proof was on him to show the reason for the dismissal was one available to him under the Law;
3. It would have been reasonable for Mr Allen to communicate to his line manager (which he did not) if he was uncomfortable or believed himself to be in imminent or serious danger (which he was not);
4. For this type of case to succeed, the principal reason for dismissal or resignation must be for a health and safety issue;
5. Informing an employer of an injury was not sufficient to be a report of a health and safety concern as required under the Law; and
6. Protection is only provided to employees who behave reasonably. The Tribunal indicated that raising health and safety concerns after leaving employment in the context of trying to make an employment claim was not reasonable.
For more information in respect of defending tribunal claims, please get in touch with a member of the Guernsey or Jersey employment team.