S44 was discussed at length on the IOSH Public Discussion Forum in October 2003. The thread extended to 49 posts and more than a thousand words.
IOSH is the Chartered body for health and safety professionals. With more than 35,000 individual members, it is the biggest professional health and safety organisation in the world.
To view the thread on S44: Click Here
If you are short of time, jump straight to Post 41.
Section 44 – Employment Tribunal Cases
In the case of Teasdale versus John Walker (t/a Blaydon Packaging), an Employment Tribunal decided that a breach of the duty to take reasonable care of an employee’s Health and Safety was a fundamental breach of contract which entitled the employee to resign and claim he had been constructively dismissed. As the ‘dismissal’ fell within Sections 44 and 100 of the Employment Rights Act, it was deemed automatically unfair.
In Harvest Press Ltd v McCaffrey (1999) The Employment Appeal Tribunal confirmed that the word `danger’ is used in S.44(2)(d) without limitation and that Parliament had intended that word to cover any danger, no matter how it arose.
NOTE: In the Harvest Press Ltd v McCaffrey case, the ‘danger’ appears to have amounted to a clear threat of physical violence. Whether an employee would be eligible for protection under Section 44 Employment Rights Act, where the claim relates to ‘serious and imminent danger’ arising from psychological harm (i.e. as a result of harassment/bullying) has yet to be tested. However, that is not to say that if an employee is so overworked or otherwise stressed that they are on the verge of a nervous breakdown and reasonably believe that to continue working in the same conditions will push them over the edge, the situation may well fall within S.44. Another way to look at it would be to consider whether a failure by the employee to withdraw from the workplace in such circumstances would constitute a breach of their statutory duty under Section 7 of the Health and Safety at Work Act 1974 – to take ‘reasonable care for their own health and safety!
If, as seems likely, such circumstances do fall within S.44, it would mean employees who have been made ill from stress at work could claim their right to protection, as well as, victims of workplace bullying and harassment!
In the News
GP victory in landmark whistleblowing legal case
14 June 2013
GP Dr Margaret Ferguson has been given the go-ahead to take Abertawe Bro Morgannwg University (ABMU) Health Board to an employment tribunal for failing to protect her from reprisals after she raised concerns about her partner’s prescribing…..she is seeking a remedy under the whistleblowing provisions of the Employment Rights Act 1996. More
To read the Employment Appeal Tribunal’s Judgement: Click Here
Just because the law says that employees are fully protected against recriminations by their employer, it doesn’t mean that recriminations won’t happen! It can be a really rough road. (Be prepared!)
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