Health & Safety Unfair Dismissal

If an employee raises a health and safety issue at work, makes a complaint, and as a consequence of the same, is penalised by the employer for this reason, then an employee may have a legal remedy option available to them.

The employee has a useful legal protection right discussed below they can avail of should they be penalised for making such a complaint. There is always an inherent imbalance of power between the employer and employee in employment relationships and the legislation on this matter fills the void to give the employee a right they can activate to hold the employer accountable and liable should penalisation occur.

If you have any questions about this topic we will be happy to help.

Health & Safety Unfair Dismissal

An employer cannot penalise or threaten to penalise an employee for making a complaint about health, safety or welfare at work.

The law comes from Section 27 of the Safety Health and Welfare at Work act 2005 which prohibits dismissal and other forms of penalisation for the reason mentioned above.

Penalisation does not only have to be dismissal but can also be a suspension, demotion, transfer of duties, lay-off, intimidation, coercion, a reprimand etc.

If an employer dismisses an employee for the reason set out in this post, the law states the dismissal will be considered an unfair dismissal.

In essence, there is a possible legal remedy option available to an employee under the Unfair Dismissals Acts or the Safety Health and Welfare at Work Act 2005 if such an occurrence occurs to an employee.

A health & safety complaint made by an employee will include a covid-19 health-related complaint.

If an employee makes such a complaint to their employer, the employer has a duty to not engage in any act or omission which operates as a detriment to the employee ie in terms of the employee’s conditions or terms of employment.

If an employee is dismissed by reason of making a health and safety complaint, they cannot obtain legal remedy relief under both the Unfair Dismissals Acts and then the Safety Health & Welfare Act 2005. Relief, if granted, derives from one of the Acts ie, not both.

Decisiveness regarding taking legal action in employment law related matters is very important, as there is such a short timeframe one can take legal action, in most cases. If an employee is dismissed or penalised for making a health and safety complaint, they only have within 6 months from the date of the penalisation or dismissal to commence the legal action.

This means the Workplace Relations Complaint form must be submitted, registered and one should ensure they obtain the case record number in good time before the expiration of the 6-month deadline.

Protected Disclosure Act 2014

This act should also be considered by an employee when the above-mentioned circumstance arises if they are considering which legal right to avail of.

This act provides protection for employees who make a ‘protected disclosure’ described as relevant wrongdoing. A ‘wrongdoing’ includes an issue regarding a health and safety matter at work.

This act provides protection from dismissal to an employee having made a protected disclosure.

An employer also cannot penalise or threaten penalisation against an employee for having made a protected disclosure.

If an employer falls foul of this legislation, an employee also has a possible tort law legal action available to them to initiate.

Disclaimer 

Please be advised that the above-mentioned material is intended as an overview and as a broad outline of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

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