Posted By Tony Gibbs
Recently found something on the same subject which may be relevant.
Tony
There is authority that an employer is not under a duty to refuse employment to or to dismiss an employee susceptible to a specific employment risk. An employee who is aware of the risk can make his own choice about whether or not to continue with his work (Withers v Perry Chain Co Ltd [1961] 1 WLR 1314). Therefore, an employee who wants to go on working, notwithstanding there may be some risk to him in doing so, is free to decide what risks he or she will run.
There was further support for this proposition in Sutherland v Hatton and others [2002] EWCA Civ 76 where the Court of Appeal said: “[an] employer could not be in breach of duty for failing to dismiss an employee who wanted to continue and master the job despite the advice given to him by his own doctor”.
From these authorities alone, it is at least arguable that an employee is free to choose not to wear personal protective equipment (PPE) and to accept the risks the PPE is intended to protect against. However, does this amount to a right for the employee to refuse to wear PPE?
Employment Rights Act 1996
Does the refusal by the employee amount to a breach of the employer’s internal rules, policies and procedures relating to health and safety? Breaches of these rules should be taken seriously, with blatant or repeated violations subject to disciplinary proceedings. It is likely to amount to misconduct if an employee fails to follow company procedure or refuses to follow a reasonable and lawful request made by an employer. Depending on the gravity of the offence, it may be reasonable to dismiss the employee summarily (without notice) where the refusal is deemed grossly negligent. For less serious breaches, however, dismissal would only be reasonable following a series of warnings. Therefore, refusal by an employee to wear PPE, which amounts to a breach of company policy, could constitute misconduct, thus triggering the disciplinary process and resulting ultimately in dismissal either for a serious one-off violation or for repeated breaches, provided the procedure followed was a fair one.
Section 100 of the Employment Rights Act 1996 provides that certain dismissals will be automatically unfair if the reason (or the principal reason) for the dismissal was within one of six specified health and safety grounds. An example would be that the employee took appropriate steps to protect himself or others from serious and imminent danger, or that the employee refused to work or return to work because of such dangers.
A refusal to wear PPE is unlikely ever to fall within such grounds. Therefore, it will be for the employer to decide how to enforce its health and safety rules and policies, and this will involve questions about whether or not to invoke the disciplinary process.
If the refusal is connected with a medical condition, it would be ill-advised for the employer to proceed down the dismissal route without considering the alternative options that are available.
Case studies
Coxall v Goodyear Great Britain Limited 2002
In Coxall v Goodyear Great Britain Limited [2002] EWCA Civ 1010, Mr Coxall suffered from occupational asthma caused by exposure to a new paint whilst working on a production line. His employer had taken all reasonable and practicable precautions to make the job safe but, unbeknown to all, Mr Coxall was pre-disposed to asthma. The company doctor told the claimant not to work with the new paint and wrote a note to this effect to his employer. The Court of Appeal said the principal consideration was the nature and extent of the known risk. The company doctor, Mr Coxall's line manager and the health and safety manager all thought the claimant should stop work. The Court of Appeal concluded they should have forced him to stop work (after considering all the available options) and had been negligent in not doing so.
Accordingly, there will be some categories of cases where an employer will be under a positive duty to dismiss the employee so as to protect him from unacceptable danger, notwithstanding the possible wish of the employee to carry on working without PPE.
Brian Farmiloe v Lane Group plc (1) and North Somerset Council (2)
This same issue has since been considered by an Employment Appeal Tribunal (EAT) in Brian Farmiloe v Lane Group plc (1) and North Somerset Council (2) EAT/0352 and 0357/03/DA.
The facts were that Mr Farmiloe (F), a warehouseman, suffered from the skin condition psoriasis. As a result, he was limited in the type of footwear that was suitable for him. His employer (the first defendant) had been operating a policy based on an internal risk assessment that all employees in the warehouse were required to wear safety boots.
The claimant was exempt from the policy due to his condition and was allowed to wear his own sturdy but soft leather shoes.
During a routine investigation by a senior environmental health officer of the second defendant this exemption was discovered. The enforcing officer advised the company that they could not simply opt out of health and safety. If PPE is necessary, then the employer must ensure that suitable equipment is provided and worn.
The employer made several attempts to obtain the necessary protective footwear to comply with its safety policy. None of the standard footwear available on the market was suitable, and a bespoke design that both satisfied the safety requirements of the company and did not aggravate the claimant's condition could not be found.
The employee was ultimately dismissed when attempts to find suitable footwear were exhausted, and an alternative position within the company that did not require the wearing of protective equipment could not be provided.
During F’s internal appeal, the operations director once again spoke to the enforcing authority who advised that: “an employer cannot opt out of its obligation to protect the safety of its employees by agreeing with them to opt out of wearing personal protective equipment and that an employee's medical condition cannot exclude the use of personal protective equipment; if it cannot be worn, the individual cannot work in the relevant area”. The appeal was, therefore, turned down.
F then turned to the employment tribunal for redress. He claimed he had been unlawfully discriminated against by his employer as they failed to make reasonable adjustments to allow him to continue working and dismissed him for a reason relating to his disability which therefore amounted to unfair dismissal.
F was successful with his claim under the Disability Discrimination Act 1995, with the tribunal finding that his employer had failed to carry out an individual risk assessment that balanced the risk involved to the employee by not wearing personal protective equipment against the disadvantage to him of losing his job. The failure to carry out this balancing exercise amounted to a failure to make reasonable adjustments.
The company then appealed to the EAT and was successful in overturning the tribunal’s decision.
The EAT found that the object of health and safety legislation was to protect the health and safety of the individual. If, as a result of an employer's risk assessment, PPE was necessary, regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 imposes an absolute duty on the employer to ensure that suitable personal protection is provided.
Regulation 10(1) of the PPE Regulations further requires the employer to take all reasonable steps to ensure that personal protection is used. In addition, the regulations further impose a criminal law duty on the employee under regulation 10(2) to use any protective equipment provided by his employer.
The employers' position
These cases are interesting because they demonstrate the relationship between the different forms of protection afforded to employees in respect of the following.
· The employee's right not to be unlawfully dismissed (Part X of the Employment Rights Act 1996).
· The Disability Discrimination Act 1995.
· The Health and Safety at Work, etc Act 1974.
· The employer's common law duty of care.
An employer must take reasonable steps to find PPE suitable for the individual employee. If that is not practicable then the employer must look for suitable alternative employment where the wearing of PPE is not required. Where no suitable protective equipment can be found and no reasonable alternative employment is available, an employee may be entitled to insist on running the risk provided the risk is a small or negligible one.
Alternatively, if the residual risk is more than trivial, the Court of Appeal and EAT appear to be saying that, following proper investigation and consultation with the employee, dismissal may be the only sensible alternative.
An employer will be placed in an unenviable position where it considers the residual risk (after exhausting all available options) warrants dismissal but the employee wishes to accept the risk and continue to work. If the employer dismisses the employee, he faces the risk of ending up in an employment tribunal defending a claim of unfair dismissal or disability discrimination. However, if he accedes to the employee’s request he could ultimately be placed in a position of potential enforcement action (enforcement notices or prosecution) for failure to comply with health and safety legislation. This course of action is also likely to place him in breach of his common law duty to exercise reasonable care, and/or he may be in breach of some statutory duty entitling the employee to bring a claim for compensation in the civil courts.
Conclusions
By no stretch of imagination may it be said that an employee has the right to refuse to wear PPE. In fact, in the absence of any medical evidence to substantiate it, such a refusal is likely to be in breach of an employee's contract of employment and amount to an act of insubordination.
In such circumstances the employer will have the option (at its discretion) to begin disciplinary proceedings. Such a refusal will also constitute a criminal offence under the PPE Regulations, which impose a duty on employees to use PPE provided by their employer.
Where an employee substantiates a refusal to wear PPE with medical evidence, the Court of Appeal and EAT have confirmed independently that an employer has obligations under employment law to consider reasonable adjustments and/or alternative employment. Where all alternatives have been exhausted, however, there is an overriding obligation on the employer to comply with health and safety law.
An employee may choose to run the residual risk by refusing to wear PPE, but where the risk is more than trivial, dismissal may be the only realistic option available to the employer to protect the employee from risks to his or her health or safety, and to protect the employer from criminal and civil liability.