Health and Safety Dismissals – steps to go through – s100 ERA

These figures are provided by the Notaries of London

normal circs his claim would be scuppered

IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment

 No continuous employment needed – important as its normally new people who

complain

 Automatically unfair (s.100 ERA) to dismiss an employee if the employee:

o Carried out activities in connection with preventing or reducing risks to H&S

at work, where the employer designated the employee to carry out activities;

o Performed or proposed to perform any functions as a H&S rep;

o Brought to employers attention circumstances connected with his work which

he reasonably believed to be harmful or potentially so;

o Left, proposed to leave, or refused to return to his place of work or any

dangerous part of his place of work, which he reasonably believed to be

serious;

o Took or proposed to take appropriate steps to protect himself or others from

danger;

o Participated reasonably in any consultation with his employer or in election of

a H&S rep.

 It’s irrelevant if its reasonable or not, the e/er cannot argue fairness and the ET wont

consider it if the dismissal is due to H+S

 Burden of proof is on the employee to prove principal reason for dismissal is H&S, if

ET happy with this, it is deemed automatically unfair.

Different assessment of awards:

Where employee is a H&S rep:

 Minimum basic award of £3,600

 Additional award of between 26 – 52 weeks pay cab be made where employee

requests reinstatement or re-engagement and either:

o The tribunal refuses to make an order, or

o The tribunal makes an order but the employer refuses to comply.

 No upper limit on award – H+S e/es get more than normal people

 Interim relief – employer can be forced to pay salary in the interim until the

settlement of the case. The claim must be brought no later than 7 days after the

EDT. The C must satisfy the tribunal that the substantive claim for UD on H&S

grounds is likely to succeed. Once satisfied the tribunal will ask the employer

whether he is willing to reinstate or re-engage the employee. If not agreed the

tribunal will make an order for continuation of the contract of employment

(contractual pay and benefits) together with compensation from termination until

6

settlement of complaint. The money paid does not have to be paid back even if C

loses.

Other employees dismissed may be entitled to an additional award for failure by the employer

to comply with an order to reinstate or re-engage, again there is no max limit placed on

compensatory awards.

Right not to suffer a detriment in H&S cases – s44 ERA

Principle e/ee raises H+S and in the future the e/er overlooks them for promotion and

doesn’t give them bonuses, etc – covered by s44 ERA

IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment

Employee entitled not to be subject to any detriment by an act or deliberate failure to act by

his employer on the same grounds as exist for automatically UD, s.44 ERA 1996.

Dismissal is not a detriment and therefore s.44 does not apply. This makes the right to be

UD on H&S grounds (s.100) and the right not to suffer a detriment mutually exclusive (s.44).

Detriment under s.44 amounts to disciplinary procedure etc.

An employee may present a claim on the ground that he has suffered a detriment in

contravention of s.44 provided it is presented within 3 months beginning with the date of the

act. If complaint upheld, the tribunal will make a declaration to that effect and also award

compo to the employee of such amount as it considers to be just and equitable in all

circumstances.

IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment

Harris Legal Philosophies, Ch. 9 (explanation of Hart’s Concept of Law)

  • Hart believed in examining legal concepts by the words used to represent them and how those words were used in ordinary language, inside and outside of the law. Use of words could be sociological evidence for something. From language analysis we discover we deduce sociological information.
  • If a group has a rule, 2 things exist: (1) Members perform/refrain from performing certain actions, and (2) there must be a “critical reflective attitude” shared by the majority towards the action in question. (1) alone would merely be habit. (2) – the internal attitude-can be demonstrated by demands for conformity e.g. normative language such as “you ought to do this”. When the pressure to conform is great, the rule is an “obligation rule”.
  • Obligation rules differ from other rules in three respects: (1) the level of pressure for compliance; (2) their association with a prized feature of social life; (3) it is generally recognised that they may cause conflict with a person’s interests.
  • Obligation rules that are enforced by physical sanctions represent a kind of law; obligation rules that don’t go that far are moral rules.
  • A society with only obligation rules cannot change its rules nor decide disputed issues, since it has no means by which to do so. Therefore society needs rules of change, adjudication and recognition. Obligation rules = primary rules; Rules of adjudication, change etc = secondary rules. Secondary rules are those that confer power, NOT impose obligations. A legal system comprises both types of rules.
  • NB an objection to this analysis of rules is to say that some rules are personal, not social, e.g. if I am a vegetarian, nobody may be compelling me to do it, and yet it is a rule to which I subject myself. Therefore, Hart’s analysis only applies to rules which have some degree of social coercion.
  • Hart’s internal element does not depend on a moral approval of the rule- acceptance may be based on fear, habit, self-interest etc
  • Hart doesn’t define what a legal system is, but says that the union of primary and secondary rules.
  • The rule of recognition is the idea that a law is only valid once it has passed through the various stages that the officials etc of the day recognise as being necessary for a law to be valid e.g. if in Britain everybody recognises that “what the queen enacts in parliament is law”, then that is the rule governing the validity of laws.
  • The rule of recognition exists as “social practice”. This social practice, according to Hart, is to be identified by looking at whether members of a group criticise those who do not comply with it.
  • Rules of recognition provide criteria by reference to which rules are identified as legal.
  • For a legal system to exist, there have to be (1) valid rules must be obeyed and (2) the rules of validity/change/adjudication must be accepted by its officials- i.e. obedience of primary rules and recognition of secondary rules by officials.
  • The point of rules on change, adjudication etc is to avoid the problems of a pre-legal society (that rules cannot change, causing rigidity and uncertainty about whether rules still apply). This approach is diagnostic i.e. it allows us to look at a country and determine whether a legal system exists.
  • Hart’s said that what the law “is” depends on both the “external” idea of “being obliged” (i.e. coercion, threats etc), and the “internal” idea of “being under an obligation” (feeling of a sense of duty to act in compliance with a law). However, many argue that the internal duty necessarily involves a moral (normative) value judgment. By contrast Raz argues that moral/normative judgments have nothing to do with what law “is” i.e. there is a difference between asking whether a law exists and whether it is a good law. Raz says there is no general moral argument for obeying the law- whether a law exists is just a function of whether the law-making institution has “authority” to do so.