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•  http://www.rtcoopers.com/practice_employment.php
•  http://www.rtcoopers.com/faq-redundancyemployee.php
•  http://www.employmentlawyersinlondon.com/video.php
•   http://www.employmentlawyersinlondon.com
• http://www.compromiseagreementlonuk.com/

© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

The claimant was suspended as a result and, in the investigation which followed, a witness asserted that the claimant was in no danger in the area in question and had not at the time conveyed that he was in any danger. The claimant was dismissed on the basis that he (i) did not observe food hygiene practices, and (ii) failed to obey instructions. The employee relied on the Employment Rights Act 1996, s100(1)(e): ”(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 – …. (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.” Decision The Employment Tribunal (ET) ruled that the claimant’s dismissal did not fall within s100(1)(e) by reason of the fact that the respondent had investigated the health and safety risk and found there was none, as conveyed by the witness.

The result was that the employee was being dismissed for a failure to follow reasonable management instructions.  The respondent appealed against the decision.  Appeal  The Employment Appeal Tribunal (EAT) ruled that the ET had failed to properly apply s100(1)(e). The EAT said that the ET needed to consider (i) whether there were circumstances of danger which the employee reasonably believed to be serious and imminent and whether he took or proposed to take appropriate steps to protect himself, and (if the criteria were made out) (ii) whether the employer’s only or main reason for dismissing the employee was that the employee took or proposed to take such steps. If it was, the dismissal must be regarded as unfair.  The Tribunal reached a conclusion on this second question but it did not reach a conclusion on the first.

Also, the mere fact that the employer disagreed with the claimant as to whether there were circumstances of danger, or whether the steps were appropriate, was irrelevant. The appeal was allowed and returned to the ET for reconsideration.

The condition imposed by the respondent was that the claimant had to enter into a compromise agreement which would, amongst other things, extinguish all rights the claimant had or may have against the employer (to the extent permitted by law). The claimant refused to sign a compromise agreement, due to some outstanding issues with the respondent on the part of the claimant. The respondent therefore paid the claimant the statutory redundancy entitlement (which was over £30,000.00 less than he would have received under the enhanced package), and the claimant asserted that his entitlement to the enhanced redundancy was contractual and not subject to him signing a compromise agreement (which was not a contractual condition but rather based on the employer’s custom and practice). The claimant brought a claim for breach of contract on the basis that the respondent had breached the term of the collective agreement that now formed part of his contract of employment, as he was not required to sign a compromise agreement. Decision The court held that it was reasonable to imply that the enhanced redundancy entitlement would be payable subject to the employee signing a compromise agreement. The claimant appealed to the Court of Appeal.

It was held that the court was correct in arriving at the decision that the entitlement to the enhanced redundancy payment would be subject to signature of a compromise agreement by the appellant. In deciding not to sign the compromise agreement, the appellant had to decide whether the claims he would be waiving were potentially more valuable than the offer under the compromise agreement and seek one or the other – he could not have the benefit of both.

In such cases a compromise agreement would be issued and signed by both parties and the employee would be paid.  As there is likely to be a long period between termination and the issuing of the first compromise agreement, the employee will be required to sign a further agreement confirming that the warranties are still accurate, to cover any issues that may have arisen during the period in question.