As an employer, you have a duty of care to ensure the health and safety of your staff. If an employee believes you are falling short of this requirement, they can complain. The law recognises that employees making such complaints should be protected from unfair treatment resulting from raising the issue or whistleblowing.
As such, employees are specifically protected by law from dismissal where they held a reasonable belief there was a risk of serious or imminent harm in the workplace.
In this guide for employers, we explain employers’ obligations to safeguard their workforce safety, how employers should handle health & safety complaints and the rules on health & safety unfair dismissal.
What is health and safety unfair dismissal?
Health and safety unfair dismissal occurs when an employee is terminated for raising genuine concerns about workplace safety or for acting to protect their own or others’ well-being. Under UK employment law, employees are legally protected from dismissal if their actions or concerns are deemed reasonable and relate to health and safety matters.
Employers must ensure that dismissals are fair and not linked to health and safety complaints. Dismissing an employee under such circumstances can lead to claims in an employment tribunal, which may result in financial compensation and reputational damage to the business.
Key risks for employers include failing to provide a safe working environment or not addressing health and safety concerns adequately. If an employee raises an issue, it should be documented and investigated thoroughly. Employers should also ensure that managers and supervisors are trained to handle health and safety matters properly to avoid misunderstandings or rash decisions.
Another important consideration is that employees with less than two years’ service can also bring a claim for health and safety-related unfair dismissal. Employers should therefore take every complaint seriously, regardless of the individual’s length of service, and implement clear procedures for handling health and safety concerns to mitigate risks effectively.
The law on health & safety dismissals
The law affords special protection to employees and workers who are dismissed for drawing their employer’s attention to health and safety issues relating to their workplace. The right to not be unfairly dismissed for health and safety reasons arises from section 100 Employment Rights Act (ERA) 1996.
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 extends the legal protections of s44(1)(d)+(e) to include workers. The statutory instrument applies to detriments on or after 31 May 2021.
Section 100 ERA provides that a dismissal will be classed as automatically unfair where the principal reason for the dismissal is for any one of the following:
- For designated health and safety activities where, having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out, or proposed to carry out, any such activities – s.1(a)
- For being a designated health and safety representative of workers at work or member of a workplace safety committee, where the employee performed, or proposed to perform, any functions as a representative or member of such a committee – s.1(b)
- For being an employee where there was no such representative or safety committee, or it was not reasonably practicable to raise the matter by those means, and for bringing to the employer’s attention, by reasonable means, circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health or safety – s.1(c)
- For leaving, proposing to leave or refusing to return to a dangerous workplace or any dangerous part of their place of work, where an employee reasonably believed that they were in serious and imminent danger and they could not be reasonably expected to avert it – s.1(d)
- For taking or proposing to take appropriate steps or proposing to protect himself/herself or other persons in circumstances of danger that they reasonably believed to be serious and imminent – s.1(e).
Claims for unfair dismissal on health & safety grounds
To claim for automatically unfair dismissal or unlawful detriment under the ERA, there is no qualifying service period. This means that employees with less than two years service may have a valid claim if they reasonably believed that they were in serious and imminent danger, or they have raised concerns with you about a lack of health and safety measures in the workplace, and have been dismissed or treated detrimentally as a result.
Where you fail to protect an employee’s health and safety, or treat them detrimentally in response to a complaint, then they may be in a position to resign and claim constructive dismissal, depending on the circumstances.
How Employers Should Handle Health and Safety Complaints at Work
Employers are legal obliged to address health and safety complaints effectively. Fundamentally, Employers should create an environment where employees feel comfortable raising health and safety concerns. Clear policies and open lines of communication can encourage employees to report issues promptly. Regular training and reminders about safety procedures reinforce the importance of workplace health and safety.
When a complaint is raised, employers should respond promptly and take the matter seriously. Delays in addressing concerns can escalate risks and harm morale. Acknowledge the complaint immediately and outline the steps that will be taken to investigate.
Conduct a fair and thorough investigation into the complaint. Gather all relevant information, including statements from the employee, witnesses, and supervisors. Review workplace conditions, safety policies, and any records of past incidents. Documentation is essential to demonstrate that the complaint has been handled appropriately.
If the investigation identifies a legitimate health and safety issue, take immediate corrective action. This could involve fixing equipment, updating procedures, providing additional training, or implementing new safety measures. Inform the employee of the actions taken and how they address the concern.
Employees who raise health and safety complaints are protected by law. Retaliation, such as dismissal, demotion, or other adverse treatment, is unlawful and can lead to claims for unfair dismissal or discrimination. Employers must ensure that no punitive actions are taken against employees for raising legitimate concerns.
Document every step of the complaint process, including the initial report, investigation findings, actions taken, and follow-up measures. Maintaining records is crucial for demonstrating compliance with legal obligations and can serve as evidence in the event of a dispute.
Use health and safety complaints as an opportunity to review workplace policies and procedures. Regularly update health and safety practices to ensure they remain effective and compliant with current regulations. Employee feedback can provide valuable insights into areas needing improvement.
Ensure that all staff, including managers and supervisors, are trained in health and safety protocols and understand how to handle complaints. Training should emphasise the importance of identifying, reporting, and addressing risks in the workplace.
Handling Potential Disciplinary Dismissal Related to Health and Safety
Dealing with potential disciplinary dismissal involving health and safety requires employers to proceed carefully, ensuring fairness, legal compliance, and clarity throughout the process. Mismanaging such situations can lead to claims of unfair dismissal or discrimination, so a structured approach is essential.
Before initiating disciplinary action, employers must carefully evaluate the situation. Determine whether the employee’s actions or behaviour posed a genuine risk to health and safety, violated established safety protocols, or resulted in negligence. Employers should collect evidence, such as witness statements, CCTV footage, and relevant records, to establish the facts.
Ensure that disciplinary actions align with the organisation’s documented policies and procedures. These should comply with employment law and include clear steps for handling health and safety breaches. The policies should also outline examples of misconduct that could warrant dismissal.
Conduct a fair and impartial investigation into the incident. Speak with the employee involved and provide them with an opportunity to explain their actions. Involve witnesses and review evidence objectively. The investigation must be thorough and free from bias to ensure a fair outcome.
Dismissal should be a last resort. Employers should consider whether alternative actions, such as additional training, reassignment, or a formal warning, could address the issue instead. Disciplinary actions should be proportionate to the severity of the breach.
If dismissal is being considered, invite the employee to a formal disciplinary meeting. Provide written notice of the meeting, including details of the allegations, the evidence gathered, and potential outcomes. Allow the employee to be accompanied by a trade union representative or colleague during the meeting.
During the meeting, present the evidence and give the employee an opportunity to respond fully to the allegations. Consider their explanations carefully and explore mitigating circumstances, such as misunderstandings, insufficient training, or workplace pressures that may have contributed to the breach.
After the meeting, consider all the evidence and responses before making a decision. If dismissal is deemed necessary, ensure the reasons are clearly documented and justified based on the facts and the organisation’s disciplinary policies.
Communicate the decision to the employee in writing, including the reasons for dismissal and their right to appeal. Clearly outline the next steps, such as returning company property or settling outstanding pay.
Offer the employee the opportunity to appeal the decision. This process should be conducted by an impartial individual or panel not involved in the original decision, ensuring transparency and fairness.
After the process concludes, review your organisation’s health and safety and disciplinary policies to identify any gaps or improvements. Consider whether the incident highlights the need for additional training, clearer communication, or updated protocols.
Need assistance?
Our HR and employment law specialists advise and guide employers on how to approach workforce management issues such as dismissals, including those involving complex issues like health and safety. To minimise legal risks while protecting your business’ commercial interests, speak to our experts today.
Health & Safety Unfair Dismissal FAQs
What constitutes a health and safety-related disciplinary issue?
Disciplinary issues related to health and safety may include actions such as breaching safety protocols, negligence that endangers others, refusal to follow safety instructions, or deliberate misuse of equipment.
Can an employee be dismissed for a single health and safety breach?
Yes, but only if the breach is serious enough to be considered gross misconduct, such as wilfully endangering others or ignoring critical safety procedures. Otherwise, dismissal should generally follow repeated breaches or a failure to improve after warnings.
What steps should be taken before dismissing an employee?
Employers must conduct a thorough investigation, hold a fair disciplinary meeting, and consider all evidence and mitigating circumstances. Dismissal should only occur as a last resort after following established disciplinary procedures.
Can an employee appeal a health and safety-related dismissal?
Yes, employees have the right to appeal any dismissal decision. The appeal process should be impartial, allowing the employee to present their case to someone not involved in the original decision.
What if an employee raises a health and safety concern before being dismissed?
Raising a genuine health and safety concern is a legally protected action. Dismissing an employee in connection with such a complaint could lead to claims of unfair dismissal. Employers must address the complaint separately and ensure no retaliation occurs.
How should employers document the disciplinary process?
Employers should keep detailed records of all steps, including the investigation, evidence, disciplinary meetings, and the final decision. Clear documentation is essential for demonstrating fairness and compliance with employment law.
What alternatives to dismissal should employers consider?
Alternatives may include issuing formal warnings, providing additional training, or temporarily reassigning the employee. Dismissal should be proportionate to the breach and considered only when other measures are insufficient.
Can an employee’s length of service affect the process?
While employees typically need two years of continuous service to claim unfair dismissal, certain situations, such as health and safety-related dismissals, may allow claims regardless of service length. Employers should always ensure fairness, regardless of tenure.
Glossary
| Term | Definition |
|---|---|
| Disciplinary Dismissal | Termination of employment due to an employee’s misconduct or breach of workplace policies, including health and safety violations. |
| Gross Misconduct | Serious actions or behaviour by an employee that justifies immediate dismissal, such as wilfully endangering others or breaking safety rules. |
| Health and Safety Breach | Any action or omission by an employee that violates workplace health and safety policies or endangers themselves or others. |
| Investigation | The process of gathering evidence and facts related to an incident or complaint before taking disciplinary action. |
| Disciplinary Meeting | A formal meeting where an employee is presented with allegations of misconduct and given the opportunity to respond. |
| Mitigating Circumstances | Factors that may lessen the severity of an employee’s actions, such as lack of training, misunderstanding, or external pressures. |
| Appeal Process | The procedure that allows an employee to challenge a disciplinary decision, ensuring fairness and an impartial review. |
| Written Outcome | A formal document provided to the employee detailing the disciplinary decision, reasons for it, and the right to appeal. |
| Protected Action | Actions, such as raising health and safety concerns, that are safeguarded under law to prevent retaliation or unfair dismissal. |
| Training and Policy Review | Steps taken by employers to improve health and safety compliance and address gaps highlighted by disciplinary incidents. |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
