Direct Report Injured at work then Sacked.
Comments
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Happy to call out others but can not admit their own failings. Sounds like a banned member with an axe to grind. Still no further evidence of helping the OP.
Yawn.
Are you referring to my posts? More than happy to admit to any or apologise if you point them out. As I recall it was my original post around H&S leading to unfair dismissal that was called out.
And no, not an ex- bandned member.0 -
Do you really believe that by have an accident the employee is then protected from dismissal?Smellyonion wrote: »Are you referring to my posts? More than happy to admit to any or apologise if you point them out. As I recall it was my original post around H&S leading to unfair dismissal that was called out.
And no, not an ex- bandned member.
Just think about that logically for a minute.0 -
In order to claim automatic unfair dismissal in a Health and safety case you need more than just any health and safety-related link.
The claim must fit within one of 5 specific scenarios.
Sangie gave a couple of examples.
Those and the other 3 are in (a)-(e) below.
https://www.legislation.gov.uk/ukpga/1996/18/section/100
I can't make...
manager told me clean high windows,
I fell and broke my arm,
I was sacked, as unsuitable, after the cast was removed
....fit. Can anyone else?0 -
Do you really believe that by have an accident the employee is then protected from dismissal?
Just think about that logically for a minute.In order to claim automatic unfair dismissal in a Health and safety case you need more than just any health and safety-related link.
The claim must fit within one of 5 specific scenarios.
Sangie gave a couple of examples.
Those and the other 3 are in (a)-(e) below.
https://www.legislation.gov.uk/ukpga/1996/18/section/100
I can't make...
manager told me clean high windows,
I fell and broke my arm,
I was sacked, as unsuitable, after the cast was removed
....fit. Can anyone else?
My point is that there is a realistic possibility. My debate with the other members was around the fact that they dismissed quite rudely that there was even a H&S clause, not the details as to whether it is plausible. That was the grievance and if you read the thread back, you will notice my point.
I totally agree that the details are abit muddier but there is still a good possibility. She could very very easily claim that the reason for her dismissal was because she had the accident. She could easily claim that, if or when the injury claim succeeds.
Take these sections within the act:
(d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
She could argue that her absence was a result of this (ie - her absence was due to her fear or danger of the H&S issues) and this is what caused her dismissal.
Case law here backs it up:
https://www.employmentcasesupdate.co.uk/site.aspx?i=ed8541
Its little more clear cut since the chef outright refused to perform the activity due to H&S but she could argue the exact same thing even if she did not make it explicit to the employer. All she has to do is claim from either of these two rationales:
Her employer dismissed her due to the employers H&S failings (100, c, ii) since her fall had brought it to their attention.
or
Her employer dismissed her due to because of her time off work because she was in fear over the H&S failings (100, d)0 -
Smellyonion wrote: »My point is that there is a realistic possibility. My debate with the other members was around the fact that they dismissed quite rudely that there was even a H&S clause, not the details as to whether it is plausible. That was the grievance and if you read the thread back, you will notice my point.
I totally agree that the details are abit muddier but there is still a good possibility. She could very very easily claim that the reason for her dismissal was because she had the accident. She could easily claim that, if or when the injury claim succeeds.
Take these sections within the act:
(d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
She could argue that her absence was a result of this (ie - her absence was due to her fear or danger of the H&S issues) and this is what caused her dismissal.
Case law here backs it up:
https://www.employmentcasesupdate.co.uk/site.aspx?i=ed8541
Its little more clear cut since the chef outright refused to perform the activity due to H&S but she could argue the exact same thing even if she did not make it explicit to the employer. All she has to do is claim from either of these two rationales:
Her employer dismissed her due to the employers H&S failings (100, c, ii) since her fall had brought it to their attention.
or
Her employer dismissed her due to because of her time off work because she was in fear over the H&S failings (100, d)
Except she was dismissed for being "unsuitable" this could be a world of reasons you are theorizing far to much that its all in relation to a injury and be honest OP is hardly going to tell the Employee to cancel her strong chance PI claim and tell her to give a thin weak irrelevant H&S dismissal claim a shot instead are they?
More money for the employee in injury than dismissal given her earnings.
and before you start with the with the oh she could do this after or in conjunction blah blah blah you linked a case law where the employee was directly sacked as a result of a H&S issue and from what I read it was resubmitted to a ET because the H&S reason for sacking were weak and not concrete which means they probably should of sacked him for something else and not quoted H&S issues as the reason why...39. It follows from what we have said that we disagree with the Tribunal's analysis of the law. It was not an answer for the Respondent to say that Ms Robertson, because she preferred Mr Killingley's account, was not dismissing the Claimant for a reason falling within section 100 (see paragraph 42 of the Tribunal's reasons). This led the Tribunal to think !!!8211; wrongly in our judgment !!!8211; that it did not need to resolve issues of fact as to the Claimant's actions and reasons for refusing to mop the floor.
This office admin was sacked because they were deemed "Unsuitable" with less than 2 years service.... An employer can make Unsuitable a world of different things.
Pick and choose your battles or go argue with a wall in the corner it'll be as useful.Save £12k in 2019 -0 -
I agree that the dismissal has potential relevance to quantum in her personal injury claim.
I disagree that there is the remotest possibility of a s.100(1)(d) claim here.
Accepting, for the moment, that she believed that she was in imminent danger.
She did not leave or refuse to return to the workplace, until the danger no longer existed, when she felt that she was at risk of injury if she stayed and cleaned the windows.
The case law does not back it up.0 -
AstroTurtle wrote: »Except she was dismissed for being "unsuitable" this could be a world of reasons you are theorizing far to much that its all in relation to a injury and be honest OP is hardly going to tell the Employee to cancel her strong chance PI claim and tell her to give a thin weak irrelevant H&S dismissal claim a shot instead are they?
More money for the employee in injury than dismissal given her earnings probably.
Pick and choose your battles or go argue with a wall in the corner it'll be as useful.
That's true. The injury claim is very strong (based on what we have heard) and will likely cover the expenses from an unfair dismissal claim. But success in the injury claim will likely lead to success in the unfair dismissal. Both should be approached in parallel if the employee is to gain maximum justice since the cut off is 3 months from being dismissed.
The defence from the employer will always be unsuitability reasons. The employer will obviously not stipulate that the employee was dismissed due to the reasons that I listed above.
Can the claimant prove beyond reasonable doubt that their dismissal originating in their employer either a) reprimanding them from not attending in a dangerous environment or b) dismissing to brush the H&S failings under the carpet? I'd say so.
The OP is simply concerned around their own involvement in the litigation and has received the answer. I am suggesting possible lines that the claimant could take.0 -
Smellyonion wrote: »That's true. The injury claim is very strong (based on what we have heard) and will likely cover the expenses from an unfair dismissal claim. But success in the injury claim will likely lead to success in the unfair dismissal. Both should be approached in parallel if the employee is to gain maximum justice since the cut off is 3 months from being dismissed.
The defence from the employer will always be unsuitability reasons. The employer will obviously not stipulate that the employee was dismissed due to the reasons that I listed above.
Can the claimant prove beyond reasonable doubt that their dismissal originating in their employer either a) reprimanding them from not attending in a dangerous environment or b) dismissing to brush the H&S failings under the carpet? I'd say so.
The OP is simply concerned around their own involvement in the litigation and has received the answer. I am suggesting possible lines that the claimant could take.
In a perfect world yes, but Tribunals and Courts aren't perfect worlds with pure common sense.
Linking the sacking to a H&S issue that occured whilst employed and then she was sacked after she was fully healed they could even argue they kept her employed long enough to recover blah blah.. There is no end to the yarns they could spin if they have simply said she isn't suitable for the job.
The hard work then becomes the claimants job to prove it was completely and 100% linked ONLY to the Injury issue WHICH as of yet we dont even know if it's possible as the Employer may of had the correct H&S rules and the Employee may of breached those (Wearing incorrect shoes etc).
Too many variables, Not enough concrete. Not worth the Time or Money to invest in pursuing given she earns £100 per week. Solicitor will eat that in 15 minutes consulatition time.Save £12k in 2019 -0 -
The case law is very limited. It that instance, it was explicit aprior, in this instance it is implied posteriori through the act of falling.I agree that the dismissal has potential relevance to quantum in her personal injury claim.
I disagree that there is the remotest possibility of a s.100(1)(d) claim here.
Accepting, for the moment, that she believed that she was in imminent danger.
She did not leave or refuse to return to the workplace, until the danger no longer existed, when she felt that she was at risk of injury if she stayed and cleaned the windows.
The case law does not back it up.
The s.100,1,d logic:
The time off work (as a result of the injury) could be the refusal to return to the environment. This caused the dismissal.
The s.100,1,c logic:
The injury highlighted H&S failings, the employer dismissed her to avoid the issue.
Obviously you couldn't take both arguments into court as that would weaken the case, the lawyers would chose the strongest one based on the evidence.AstroTurtle wrote: »In a perfect world yes, but Tribunals and Courts aren't perfect worlds with pure common sense.
Linking the sacking to a H&S issue that occured whilst employed and then she was sacked after she was fully healed they could even argue they kept her employed long enough to recover blah blah.. There is no end to the yarns they could spin if they have simply said she isn't suitable for the job.
The hard work then becomes the claimants job to prove it was completely and 100% linked ONLY to the Injury issue WHICH as of yet we dont even know if it's possible as the Employer may of had the correct H&S rules and the Employee may of breached those (Wearing incorrect shoes etc).
Too many variables, Not enough concrete. Not worth the Time or Money to invest in pursuing given she earns £100 per week. Solicitor will eat that in 15 minutes consulatition time.
I agree that law is very subjected hence the need for hearings. More so than people would imagine. Interms of likelihood of success and payout, the injury claim is what will be pursued.0 -
Ah. Excellent. And now I know who you are! I have told you this before - you may find it entertaining to pretend to be a legal expert and quote your Google searches like an authority. Playing with people's lives and telling them things that are entirely unrealistic or untrue is not amusing. It is damaging. Misleading people into believing they have rights or entitlements that do not exist isn't funny. You aren't the one taking the risks or paying the bills. You've caused enough damage. It seems that didn't satisfy you.0
This discussion has been closed.
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