Do not listen with half an ear on H&S matters

In a recent judgment Gibson vs Lothian Leisure (29.01.2021) the UK Employment Tribunal discussed and concluded that an employee (a chef) had been unfairly dismissed for raising concerns about covid-secure measures out of concern for his clinically vulnerable father.

The claimant, in the run-up to the end of lockdown and the prospective re-opening of the restaurant, was asked to undertake some work (“coming in and helping out for a bit”). He had begun to raise concerns with his employer about the possibility of his father catching Covid from him on his return to work. No personal protective equipment was provided for staff and there was no intention of requiring staff to take precautions. The employee raised these issues a number of times and was told to “shut up and get on with it!”. The claimant believed that the respondent started to see him as a nuisance despite the previously good relationship. The UK employment tribunal decided that his dismissal (even though the dismissal was worded as though it was based on a redundancy scenario) was unfair and was awarded damages.

Comparatively, in Gosney vs V&C Contractors Limited (First Hall, Civil Court– 28.10.2019) the plaintiff claimed that he was frequently sanctioned and penalised whenever he raised health and safety concerns with the person on-site who was responsible for ensuring a safe system of work. In his testimony, the claimant said he would raise concerns though “you couldn’t say anything to him and question his authority. Otherwise he would ring up the owner of the machine and have you put out or whatever.”. The claimant was afraid that he would lose his job and was told on several occasions that voicing his concerns showed that he had the wrong attitude and that he should just obey. The claimant did suffer an injury due to defective equipment and the Maltese courts held the employers, the contractors, and the supervisors’ heirs liable in solidum for failing to provide a safe system of work as the supervision was inadequate and protective equipment was useless.

By law, employers must consult workers and/or workers’ health and safety representatives “in advance and in good time” to promote measures to ensure health and safety at work (S.L. 424.18 – General Provisions for Health and Safety at Work Places). “Consult” generally means that employers must not only give information but also listen to and take account of what employees are saying before implementing any measures or taking decisions. Ignoring H&S complaints or concerns can lead to reputational damage, financial penalties, and at worst it may endanger lives. A proper consultation can and will result in healthier and safer workplaces, better decisions, and a stronger commitment to implementing those decisions.