In some circumstances, despite following a fair procedure, a dismissal will still be unfair.
In the field of health and safety, a dismissal will be automatically unfair if it arises from:
- an employee raising a concern regarding health and safety to an appropriate person;
- an employee refusing to work in circumstances of imminent danger;
- an employee taking appropriate steps to protect himself or others in circumstances of imminent danger.
A difficulty arises where one employee's view of a situation is that it is safe, whilst another's view of the same situation is that it gives rise to an imminent danger. This situation was considered in the case of Oudahar v Esporta Group when an employee was dismissed for refusing to carry out cleaning tasks because he felt that, as there were wires coming out of the wall of an incomplete kitchen, he would be put in a situation of imminent danger if he carried out the cleaning as requested.
The maintenance manager for the kitchen had confirmed that the kitchen was free from danger but the employee still refused to the carry out the work. The employee was dismissed for:
- failure to obey lawful instructions; and
- disregard of food hygiene.
The Tribunal found that, despite the area actually being safe to clean, the employer was wrong to dismiss the employee for his refusal. In reaching its decision, the Tribunal set out the following stages to determine whether an employee was protected under health and safety legislation:
- Were there circumstances of danger that the employee reasonably believed to be serious and imminent?
- Did the employee take appropriate steps to protect himself from that danger?
It is not relevant whether or not the employer agrees that there was an imminent or serious danger.
The effect of this decision is to emphasise that, in health and safety cases, the employer's view of the situation is not relevant: if the employee genuinely believes that there is a danger and that they are avoiding that danger, any dismissal decision taken as a result will be automatically unfair