Health and safety; duty of care; employer must take reasonable steps to protect employees from known risks (cancer).
Contract; health; implied term that an employer will not require an employee to work so much it damages their health.
Health & safety; s.44/s.100 ERA; 'danger' includes threats from a colleague's conduct, not just physical workplace hazards; broad interpretation of serious and imminent danger.
Personal injury; work-related stress; foreseeability and apportionment. Hale LJ set out sixteen 'practical propositions' at [43] governing employer liability for psychiatric injury caused by occupational stress; the threshold question is whether injury to this particular employee was reasonably foreseeable. Proposition 15 (where harm has more than one cause the employer pays only for the proportion attributable to his wrongdoing unless the harm is truly indivisible, and it is for the defendant to raise apportionment) and proposition 16 (damages take account of any pre-existing disorder or vulnerability and the chance the claimant would have succumbed anyway) were obiter, apportionment not arising in any of the four conjoined appeals. Proposition 15 was doubted obiter in Dickins v O2 plc and the conflict resolved in Hatton's favour in BAE Systems (Operations) Ltd v Konczak at [70]. The neutral citation is captioned Sutherland v Hatton; one conjoined appeal went to the House of Lords as Barber v Somerset CC [2004] UKHL 13.
Health & safety; s.44/s.100 ERA; collective refusal to work due to hazardous conditions; industrial action is not a 'reasonable means' under s.100(1)(c) for bringing H&S concerns if union procedures available.
Personal injury; work-related stress; apportionment. Smith LJ, expressly obiter, doubted Hale LJ's proposition 15 in Hatton v Sutherland: 'I respectfully wish (obiter) to express my doubts as to the correctness of Hale LJ's approach to apportionment.' She questioned whether proposition 15 could ever apply in practice, psychiatric injury being in her view always indivisible, and considered that justice could be done by proposition 16 alone. The conflict with Hatton was later resolved in Hatton's favour by the Court of Appeal in BAE Systems (Operations) Ltd v Konczak.
Health and safety; automatically unfair dismissal; s.100(1)(e) ERA 1996; two-stage approach. The EAT held that a s.100(1)(e) claim is approached in two stages. First, were the statutory criteria met as a matter of fact: were there circumstances of danger the employee reasonably believed to be serious or imminent, and did the employee take or propose to take appropriate steps to protect themselves or others, or, following Balfour Kilpatrick v Acheson, communicate the circumstances to the employer by appropriate means? Second, if so, was that the sole or principal reason for dismissal? The claimant was dismissed for refusing to mop an area where wiring was exposed; the tribunal rejected the claim because the employer had investigated and satisfied itself there was no risk. The EAT allowed the appeal and remitted: the employer's own conclusion on risk was irrelevant to whether the reason for dismissal fell within s.100(1)(e), which protects an employee who acts honestly and reasonably. Refusing to work or leaving the workplace is the province of s.100(1)(d); (1)(e) is concerned with steps taken to address the danger.
Health and safety; s.100(1)(d) ERA 1996; coronavirus; reasonable belief; serious and imminent danger. The EAT held that a general fear of Covid-19 is not automatically sufficient to engage s.100(1)(d), the employee must hold a reasonable belief that the circumstances at the workplace constitute a serious and imminent danger. The tribunal must consider whether the specific conditions of the claimant's particular workplace gave rise to a qualifying belief, not merely a generalised concern about the pandemic.
Health and safety; s.100(1)(d) ERA 1996; coronavirus; reasonable belief of serious and imminent danger. An employee who refused to attend work during the first Covid-19 lockdown due to fear of contracting the virus was protected under s.100(1)(d). The tribunal found he held a reasonable belief that attending work constituted a serious and imminent danger, notwithstanding that the danger was not confined to the workplace. The employee's personal circumstances (caring for a vulnerable family member) were relevant to the reasonableness of his belief.
Health & Safety; s.44 ERA; a worker has the right to refuse work if they reasonably believe there is serious and imminent danger.