Posted By Karen Todd Hello all, I have a query about constructive dismissal for reasons of H&S. I think that the time limit for unfair dismissal is a year, i.e. you have to have worked for your employer for at least a year before you can try to claim unfair dismissal if you get sacked, unless it is for certain reasons which automatically make the dismissal unfair (e.g. health and safety, asserting a statutory right, etc.). Am I right so far? So, do these "special reasons" also waive the 1 year's service qualifier for constructive dismissal? E.g. An employee has worked to their employer for less than a year. I'll use the example of a lorry driver. Let's say that the employee is continually asked (told) to break the law on a regular basis, for example by not taking proper breaks, by driving more hours than he is legally allowed to, by being instructed to destroy tachograph charts and the employer doesn't give him the appropriate daily/weekly rest periods etc. Let's also say that whilst in their employment, the employee has also been convicted of some of these offences (but the company has not). Where would this employee stand if they felt they had no option but to leave their employment forthwith, on the grounds of H&S as, say, they had not had their appropriate rest break and would be again acting illegally if they followed their employer's instructions? And what about if they have less than a year's service? I am trying to clarify in my mind unfair and constructive dismissal in relation to H&S, what happens, time limits (if applicable), etc. I think I've got unfair dismissal sussed, but am not quite sure about constructive dismissal. Regards, Karen

Posted By Sean Fraser It would be concerning if despite legal protection of workers to be "whislteblowers" it only takes effect after they have worked a year, so they were exposed to unacceptable risks in the meantime. Surely this particular piece of legislation takes effect immediately an offer of employment has been accepted? I have not read the Act in full so I don't know if there are restrictions but I have copied the text for section 44 below for reference (full Act can be seen on www.hmso.gov.uk) Employment Rights Act 1996 44. - (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground 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, (c) being an employee at a place where- (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (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. (2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did. (4) Except where an employee is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where the detriment in question amounts to dismissal (within the meaning of that Part).

Posted By Karen Todd Hmmm. I think in the example I've given, had the employee refused to start a journey (on the grounds of health and safety) because he hadn't had his appropriate rest break and then been sacked by the employer because of this, he would have a case for unfair dismissal regardless of the length of service because H&S is one of the exceptions to the 1 year rule for unfair dismissal. However, had the employee felt he had no option but to leave his employment in order to ensure his own safety and that of other road users, and he had not been with the company for a year, I'm not sure if there would be a case for constructive dismissal on the grounds of H&S or not. Sean, you raise a very valid point. Perhaps 'wiser' employers know not to sack someone who is a whistleblower, but instead make them feel as if they have to leave, but then surely they would have been subjected to a detriment. So, in essence, can someone claim constructive dismissal on the grounds of H&S with less than a year's service or not? Karen