Health and Safety

The health and safety of individuals at work is protected in a number of ways, both under statute and the common law.

Employers must protect the health and safety of employees and workers in accordance with the Health and Safety at Work etc. Act 1974.  Employers also have a duty of care to protect their employees’ health and safety ‘during the course’ of their employment. 

This protection is set out at s44 Employment Rights Act 1996 (ERA) (not to suffer any detriment for health and safety reasons) which applied to both employees and workers. Employees are also protected under s100 ERA from dismissal (if dismissed, the dismissal will be ‘automatically unfair’). 

The legislation is clear that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer, and an employee who is dismissed shall be regarded as unfairly dismissed, if the detriment or dismissal is on the ground that:

  • In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
  • 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.
  • Whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.
  • An employee is not to be regarded as having been subjected to any detriment if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

If an employee does not have enough qualifying service to bring a claim of ‘ordinary’ unfair dismissal, and claims that the dismissal was for an automatically unfair reason (a day-one protection) then they will bear the burden of proof to show that the dismissal was indeed for that automatically unfair reason. 

Should you be concerned about Health and Safety compliance in your business, 121 HR Solutions have qualified Health and Safety Consultants that can conduct a site audit – contact us on 0800 9995 121 to discuss further your requirements. 

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