Oudahar v Esporta Group Limited UKEAT/0566/10

The EAT has given guidance in this case on how to determine when a dismissal is to be regarded as automatically unfair for a health and safety reason.  Mr Oudahar was employed by Esporta as a Chef in one of their health clubs.  After overnight maintenance work was left incomplete, he refused the following morning to mop an area where wires were exposed as he considered them to be unsafe.  He was dismissed for insubordination and breach of the food hygiene rules.  He brought a claim for unfair dismissal alleging that he had refused to comply with his instructions for health and safety reasons.  Esporta denied that any such reason existed.  The tribunal held that the principal reason for his dismissal was his refusal to follow instructions, Esporta had reached a genuine decision and that he had not carried out a protected act.  Mr Oudahar appealed and was successful.  There should be a two stage test:  

  1. Were there circumstances of danger which the employee reasonably deemed to be serious and imminent? Did the employee take or propose to take appropriate steps to protect himself or other persons from danger; or did he take steps to communicate these circumstances to his employer by appropriate means?
  1. If the criteria are made out, was the employer’s sole or principal reason for dismissal that the employee took or proposed to take such steps? 

It serves the interests of health and safety that an employee’s employment should be protected so long as he behaves honestly and reasonably.  If an employee is liable to dismissal merely because his employer disagreed with his account of the facts or his opinion as to the action required, the statutory provisions would give the employee little protection.

Key point:  There has been little previous guidance on the correct approach on health and safety reasons and the case confirms that the focus when deciding such cases should be on the employee’s state of mind when acting as he did, and not on the employer’s interpretation.

- HSE statistics

The HSE has published its workplace fatal injury statistics in Great Britain for 2010/2011.  Although the underlying trend is downward the number of deaths in 2010/11 was 171.  This is an increase from 2009/10 from 147.  Workplace deaths in the agricultural sector fell but there was an increase in number of deaths in the construction and manufacturing service sectors.  The agricultural and waste recycling sectors had the highest fatal injury incident rates.

(Source – HR Review)