was an employee unfairly dismissed for raising health and safety concerns?

Yes, found the employment tribunal considering the matter of Mr M Ham v Esl Bbsw Ltd, another case concerning section 100 of the Employment Rights Act 1996. 

Mr Ham was employed by Esl Bbsw, a company that provides cleaning products, for 5 months. He therefore did not have the requisite service to bring a claim for ordinary unfair dismissal under ERA 1996.

Mr Ham was dismissed for raising health and safety concerns on or around 30 March 2020. At the time the Prime Minister had just announced that employees should only attend work if essential.

Mr Ham received a call from his line manager requesting that he collect some equipment from a school before it was closed during the national lockdown. Mr Ham had a van which was full at the time. His line manager said that he could drop the equipment off at her home. At the time she was self-isolating with her daughter with suspected covid. Mr Ham challenged this request, raising concerns about whether this was safe given the fact his manager was isolating. Mr Ham was dismissed for raising health and safety concerns later that day.

Relying on sections 100(c) and/or (e) of the ERA 1996, Mr Ham claimed that he had been automatically unfairly dismissed for raising health and safety concerns.

An employee shall be regarded as unfairly dismissed if the reason, or the principal reason, for the dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent, he left or refused to return to his place of work or he took appropriate steps to protect himself or other persons from danger. 

The employment tribunal, preferring Mr Ham’s version of events agreed that the principal reason for the dismissal was because the Mr Ham raised concerns about his health and safety. 

The Judgment went further to state that “it is inconceivable that an employee being instructed to go to a house where two people were self-isolating with suspected COVID symptoms, was not raising concerns that he “reasonably believed were harmful or potentially harmful to his health…”.

We have seen a few cases now concerning section 100 of the ERA 1996 where employees have claimed that they have been dismissed because of concerns they have raised regarding Covid but not all of the judgments have been quite so favourable to the claimant. Of course, this is a first instance decision (so not legally binding) and each case will turn on its own facts.

You can read the full judgment here.

This case update was written by Joanne Sinclair, Trainee, didlaw.