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> Holden verses Connex South Eastern > Closing Submissions > Health & Safety
IN THE LONDON SOUTH
EMPLOYMENT TRIBUNAL
CASE NO: 2301550/2000
BETWEEN:
MR LAURANCE HOLDEN
Applicant
and
CONNEX SOUTH EASTERN LIMITED
Respondent
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APPLICANT'S
CLOSING
SUBMISSIONS
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1.
A claims that he was unfairly constructively dismissed :
a) for carrying out the functions of a health and safety representative
(ERA, s.100)1;
b) alternatively, for making protected disclosures
(ERA, s.103A)2;
c) alternatively, that he was merely unfairly constructively dismissed
(ERA, s.98).
A promotes the above arguments without prejudice to R's obligation to establish that the reason for dismissal was potentially fair
3.
2.
A contends that R breached the implied term of trust and confidence in that:
a) R victimised A for carrying out the duties of a health and safety representative;
b) R obstructed A in carrying out his functions as a health and safety representative;
c) R victimised A for making protected disclosures;
d) R did not provide A with a safe place and system of work.
Health and Safety
A. The Right
3.
ERA, s.100 provides that:
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -
(a)
having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,
(b)
being a representative of workers on matters of health and safety at work or member of a safety committee -
(i)
in accordance with arrangements established under or by virtue of any enactment, or
(ii)
by reason of being acknowledged as such by the employer,
the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee."
B. A's Qualification for Statutory Protection
4.
It is common ground that A was a health and safety representative for the purposes of s.100. Some of R's witnesses have contended that A was performing the role of a "local" health and safety representative. This is not a limitation recognised or authorised by statute. An employee is either a health and safety representative or not.
5.
R has not indicated whether or not it accepts that A was performing or proposed to perform his representative functions. The Tribunal is invited to consider the bundles for detailed references to various health and safety matters raised and pursued by A. In summary, they are:
a)
"Local" issues - accommodation at Charing Cross; Dartford sidings; Slade Green Signal step down board; Sevenoaks Tunnel; no-smoking policy;
b)
General driver issues - air conditioning in drivers' cabs; hours of work; the connection between fatigue and SPADs; assaults on drivers; driver-only cabs;
c)
Matters specifically related to performance of a H&S representative's functions - facilities, time off, consultation and information.
6.
It is submitted that in his involvement in the issues set out above, A was clearly performing the functions of a safety representative:
"In addition to his function under section 2(4) of the 1974 Act to represent the employees in consultation with the employer under section 2(6) of the 1974 Act (which requires every employer to consult safety representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of such measures), each safety representative shall have the following functions -
(a)
to investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to his attention by the employees he represents) and to examine the causes of accidents at the workplace;
(b)
to investigate complaints by any employee he represents relating to that employee's health, safety or welfare at work;
(c)
to make representations to the employer on matters arising out of sub-paragraphs (a) and (b ) above;
(d)
to make representations to the employer on general matters affecting the health, safety or welfare at work of the employees at the workplace;
(e)
to carry out inspections in accordance with Regulations 5, 6 and 7 below4;
(f)
to represent the employees he was appointed to represent in consultations at the workplace with inspectors of the Health and safety Executive and of any other enforcing authority;
(g)
(not copied)
(h)
to attend meetings of safety committees where he attends in his capacity as a safety representative in connection with any of the above functions."5
7.
It is therefore submitted that A was at the relevant time an individual capable of being victimised because he performed or was proposing to perform the functions of a safety representative. The question of whether or not A was actually victimised is dealt with below.
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1 Such a dismissal is automatically unfair.
2 Such a dismissal is also automatically unfair.
3 Berriman v. Delabole Slate Ltd. [1985] ICR 546.
4 These relate to workplace inspections, inspections following notifiable accidents and inspection of documents/provision of information.
5 Safety Representatives and Safety Committees Regulations 1977, r.4(1). The Tribunal is respectfully invited to consider the provisions of the Health and Safety Commission Code of Practice: Safety Representatives and Safety Committees (1978), at para.5 ("Functions of safety representatives").
[A = Applicant = Mr L Holden
R = Respondent = Connex South-Eastern]
