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Health and Safety Grievance
Health and Safety in the Workplace
In the workplace context, health and safety refers to the measures and duties designed to ensure the physical and mental well-being of employees. Employers have a general duty, imposed by the Health and Safety at Work etc. Act 1974, to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees at work. This broad concept encompasses issues such as terms and conditions of employment, working environment, and ensuring appropriate working practices. Health and safety also includes managing the risks of work-related stress, which is defined as the adverse reaction people experience in response to excessive pressures or other demands placed on them at work. Legal protection is afforded to workers who raise concerns or refuse to work when they reasonably believe they are facing a serious and imminent danger, a protection that extends to taking appropriate steps to protect themselves or others from that danger. Issues that commonly lead to grievances include those concerning health and safety.
The Health and Safety Grievance
A grievance is formally defined as a concern, problem, or complaint that an employee brings to their employer. Among the issues that commonly lead to grievances are those concerning Health and safety. Suppose an issue cannot be resolved through informal discussion. In that case, the employee should formally raise the matter in writing, without unreasonable delay, and direct it towards a manager who is not the subject of the complaint. When drafting this communication, the employee should provide as much relevant factual detail as possible, ensuring the information is accurate, as this aids the employer in investigating and resolving the issue promptly. It is helpful to set out multiple aspects of the grievance under separate headings and include details of any relevant witnesses or documentation.
The Employment Rights Act 1996
The law provides explicit protection for employees who raise concerns or refuse to work due to health and safety concerns. The Employment Rights Act 1996 (ERA 1996) establishes that it is unlawful for an employer to subject an employee to a detriment (Section 44) or to dismiss them (Section 100) for exercising their rights under these protections. A dismissal based on health and safety grounds under Section 100 is classified as automatically unfair. A key advantage of this protection is that, unlike standard unfair dismissal claims, the employee does not need to have the usual two-year qualifying period of service to bring a claim. Furthermore, if a claim under Section 100 is successful, the compensatory award is not subject to the statutory cap.
Key Features of Protection under Section 100 are:
No Qualifying Period
Unlike ordinary unfair dismissal claims, employees do not need the usual qualifying period of service to bring a claim under Section 100.
Compensation Cap
The statutory cap on the compensatory award typically applied in unfair dismissal cases does not apply to dismissals for health and safety reasons under Section 100.
Reasonable Belief
The protection hinges on the subjective belief of the employee, provided that belief is objectively reasonable. The reasonableness test should not be applied onerously to employees.
Other Sections Providing Protection Against Dismissal
Beyond Section 100, other ERA 1996 sections offer protection related to employee rights, which can sometimes overlap with health and safety concerns:
Section 103A (Whistleblowing)
Dismissal for making a protected disclosure is automatically unfair. There is no qualifying period of service or upper limit on compensation. An employee successfully claimed automatic unfair dismissal under this section for disclosing risks related to the employer's inadequate risk assessment during the pandemic.
Section 104 (Asserting a Statutory Right)
Dismissal for asserting a statutory right is automatically unfair. This covers rights such as those conferred by the Working Time Regulations 1998 (WTR 1998) or the right not to suffer unlawful deductions from wages.
Furthermore, dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing is also automatically unfair under Section 12 of the Employment Relations Act 1999
Serious and Imminent danger
Statutory protection applies if an employee refuses to work because they reasonably believe they are facing a serious and imminent danger to their health or safety. This protection extends to taking or proposing to take appropriate steps to protect themselves or other persons from that serious and imminent danger. The appropriateness of these steps must be judged by considering all the circumstances, including the employee's knowledge and the facilities and advice available to them at the time. The protection is based on the subjective belief of the employee, provided that belief is objectively reasonable. Employment Tribunals have emphasised that the reasonableness of the employer's behaviour is not the criterion; rather, it is the reasonableness of the employee's belief, and this test should not be applied onerously.
“Dangerous” - What is Danger
Circumstances of danger are not limited to physical arrangements in the workplace but may also arise from the acts of another employee. Protection is also afforded if an employee brings circumstances connected with their work, which they reasonably believe are harmful or potentially harmful to health or safety, to the employer’s attention by reasonable means. For these purposes, travel to and from work can be considered circumstances "connected to work".
Managing stress in the workplace
Managing stress in the workplace is a crucial component of an employer's duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees at work. Stress itself is defined as the adverse reaction people have to excessive pressure or other types of demand placed on them at work. While not classified as a medical condition, it can be serious and may cause or worsen mental health issues such as anxiety or depression. To manage and prevent the risks associated with work-related stress, employers can adopt frameworks like the Health and Safety Executive's (HSE) Management Standards approach, which outlines six main areas of work design to focus on: demands, control, support, relationships, role, and change. Proactive management involves ensuring good working conditions, routinely monitoring employee mental health and wellbeing, and addressing root causes such as unmanageable workloads, poorly defined job roles, or poor relationships with managers or colleagues. Additionally, employers commonly provide support mechanisms, including access to an Employee Assistance Programme (EAP), counselling services, and mental health first aid training. They should foster an open culture where employees feel encouraged to discuss their mental health openly.
Formal Grievance Rules Apply
If a formal grievance is raised in writing, the employer should acknowledge receipt and invite the employee to an initial meeting without unreasonable delay. The purpose of this initial meeting is to clarify the aspects of the grievance and determine the scope of the necessary investigation. Conducting a proper investigation is a crucial fact-finding exercise; an employer deciding on a grievance without first completing a reasonable investigation risks that decision being deemed unfair. At the actual grievance hearing, the employee has a statutory right to be accompanied by either a fellow worker or a trade union representative. Following the hearing, the employer must communicate their decision on the action intended to resolve the grievance to the employee in writing, without unreasonable delay, and inform them of their right of appeal.
Making it effective
This is where I can help. To draft your health and safety grievance effectively, you should formally raise the matter in writing and without unreasonable delay, directing it towards a manager who is not the subject of the complaint. It is vital to provide as much relevant factual detail as possible, ensuring the information is accurate and correct, as this assists your employer in investigating and resolving the issue promptly. If your grievance has multiple aspects, it is helpful to outline them clearly under separate headings. You should also include details of any relevant witnesses or documentation that can corroborate the facts.
Health and Safety in the Workplace
In the workplace context, health and safety refers to the measures and duties designed to ensure the physical and mental well-being of employees. Employers have a general duty, imposed by the Health and Safety at Work etc. Act 1974, to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees at work. This broad concept encompasses issues such as terms and conditions of employment, working environment, and ensuring appropriate working practices. Health and safety also includes managing the risks of work-related stress, which is defined as the adverse reaction people experience in response to excessive pressures or other demands placed on them at work. Legal protection is afforded to workers who raise concerns or refuse to work when they reasonably believe they are facing a serious and imminent danger, a protection that extends to taking appropriate steps to protect themselves or others from that danger. Issues that commonly lead to grievances include those concerning health and safety.
The Health and Safety Grievance
A grievance is formally defined as a concern, problem, or complaint that an employee brings to their employer. Among the issues that commonly lead to grievances are those concerning Health and safety. Suppose an issue cannot be resolved through informal discussion. In that case, the employee should formally raise the matter in writing, without unreasonable delay, and direct it towards a manager who is not the subject of the complaint. When drafting this communication, the employee should provide as much relevant factual detail as possible, ensuring the information is accurate, as this aids the employer in investigating and resolving the issue promptly. It is helpful to set out multiple aspects of the grievance under separate headings and include details of any relevant witnesses or documentation.
The Employment Rights Act 1996
The law provides explicit protection for employees who raise concerns or refuse to work due to health and safety concerns. The Employment Rights Act 1996 (ERA 1996) establishes that it is unlawful for an employer to subject an employee to a detriment (Section 44) or to dismiss them (Section 100) for exercising their rights under these protections. A dismissal based on health and safety grounds under Section 100 is classified as automatically unfair. A key advantage of this protection is that, unlike standard unfair dismissal claims, the employee does not need to have the usual two-year qualifying period of service to bring a claim. Furthermore, if a claim under Section 100 is successful, the compensatory award is not subject to the statutory cap.
Key Features of Protection under Section 100 are:
No Qualifying Period
Unlike ordinary unfair dismissal claims, employees do not need the usual qualifying period of service to bring a claim under Section 100.
Compensation Cap
The statutory cap on the compensatory award typically applied in unfair dismissal cases does not apply to dismissals for health and safety reasons under Section 100.
Reasonable Belief
The protection hinges on the subjective belief of the employee, provided that belief is objectively reasonable. The reasonableness test should not be applied onerously to employees.
Other Sections Providing Protection Against Dismissal
Beyond Section 100, other ERA 1996 sections offer protection related to employee rights, which can sometimes overlap with health and safety concerns:
Section 103A (Whistleblowing)
Dismissal for making a protected disclosure is automatically unfair. There is no qualifying period of service or upper limit on compensation. An employee successfully claimed automatic unfair dismissal under this section for disclosing risks related to the employer's inadequate risk assessment during the pandemic.
Section 104 (Asserting a Statutory Right)
Dismissal for asserting a statutory right is automatically unfair. This covers rights such as those conferred by the Working Time Regulations 1998 (WTR 1998) or the right not to suffer unlawful deductions from wages.
Furthermore, dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing is also automatically unfair under Section 12 of the Employment Relations Act 1999
Serious and Imminent danger
Statutory protection applies if an employee refuses to work because they reasonably believe they are facing a serious and imminent danger to their health or safety. This protection extends to taking or proposing to take appropriate steps to protect themselves or other persons from that serious and imminent danger. The appropriateness of these steps must be judged by considering all the circumstances, including the employee's knowledge and the facilities and advice available to them at the time. The protection is based on the subjective belief of the employee, provided that belief is objectively reasonable. Employment Tribunals have emphasised that the reasonableness of the employer's behaviour is not the criterion; rather, it is the reasonableness of the employee's belief, and this test should not be applied onerously.
“Dangerous” - What is Danger
Circumstances of danger are not limited to physical arrangements in the workplace but may also arise from the acts of another employee. Protection is also afforded if an employee brings circumstances connected with their work, which they reasonably believe are harmful or potentially harmful to health or safety, to the employer’s attention by reasonable means. For these purposes, travel to and from work can be considered circumstances "connected to work".
Managing stress in the workplace
Managing stress in the workplace is a crucial component of an employer's duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees at work. Stress itself is defined as the adverse reaction people have to excessive pressure or other types of demand placed on them at work. While not classified as a medical condition, it can be serious and may cause or worsen mental health issues such as anxiety or depression. To manage and prevent the risks associated with work-related stress, employers can adopt frameworks like the Health and Safety Executive's (HSE) Management Standards approach, which outlines six main areas of work design to focus on: demands, control, support, relationships, role, and change. Proactive management involves ensuring good working conditions, routinely monitoring employee mental health and wellbeing, and addressing root causes such as unmanageable workloads, poorly defined job roles, or poor relationships with managers or colleagues. Additionally, employers commonly provide support mechanisms, including access to an Employee Assistance Programme (EAP), counselling services, and mental health first aid training. They should foster an open culture where employees feel encouraged to discuss their mental health openly.
Formal Grievance Rules Apply
If a formal grievance is raised in writing, the employer should acknowledge receipt and invite the employee to an initial meeting without unreasonable delay. The purpose of this initial meeting is to clarify the aspects of the grievance and determine the scope of the necessary investigation. Conducting a proper investigation is a crucial fact-finding exercise; an employer deciding on a grievance without first completing a reasonable investigation risks that decision being deemed unfair. At the actual grievance hearing, the employee has a statutory right to be accompanied by either a fellow worker or a trade union representative. Following the hearing, the employer must communicate their decision on the action intended to resolve the grievance to the employee in writing, without unreasonable delay, and inform them of their right of appeal.
Making it effective
This is where I can help. To draft your health and safety grievance effectively, you should formally raise the matter in writing and without unreasonable delay, directing it towards a manager who is not the subject of the complaint. It is vital to provide as much relevant factual detail as possible, ensuring the information is accurate and correct, as this assists your employer in investigating and resolving the issue promptly. If your grievance has multiple aspects, it is helpful to outline them clearly under separate headings. You should also include details of any relevant witnesses or documentation that can corroborate the facts.