Hung out to dry

But it wasn't.

In 2000 M&E specialist Balfour Kilpatrick had 240 electricians working on the Pfizer pharmaceutical plant in Sandwich, Kent. It was a wet spring and the site was affected. Employees were having trouble adequately drying their protective clothing.

On April 4, 2000, it rained very heavily. This produced wide areas of standing water on the marshy ground around the site. It was also very cold.

The electricians delegated two colleagues to approach management with their concerns about their working conditions and to ask for the afternoon off, to dry out. Dissatisfied with the outcome, electricians then left the site en masse and did not start work for two days. When they returned, they were given letters of dismissal.

Seventy-eight of those electricians started proceedings for unfair dismissal. Their claims were based on section 100 (1)(c) of the Employment Rights Act 1996, which states (roughly) that it's unfair to dismiss someone for using "reasonable means" to inform an employer about circumstances he or she believes are harmful.

They also argued that the dismissals had been automatically unfair under section 100(1)(d), where the reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, he left his place of work.

The employment tribunal ruled that all the dismissals had been unfair because they had been in breach of section 100(1)(c). It was reported at the time that the settlement would be in the range of £3,100 per sacked employee. A spokesperson for the engineering and electricians' union, the AEEU, was delighted and claimed that the incident was caused by poor industrial relations.

The appeal
But Balfour Kilpatrick appealed to the Employment Appeal Tribunal. Their point was that unlawful industrial action could not constitute "reasonable means" of bringing concerns about health and safety matters to the attention of employers. Attention had been drawn to health and safety matters by orally communicating the employees' concerns.

The EAT allowed the appeals and ruled that the dismissals had not been unfair. It made the following points: For section 100(1)(c) to come into play, the employee must have brought to the employer's attention, by reasonable means, the circumstances which he believes are harmful or potentially harmful to health and safety.

The reason for the dismissal must be the fact that the employee was exercising his employment rights.

It would be highly artificial if, when drawing matters of serious and imminent concern to the employer, employees had to concern themselves with the appropriate route whereby that information was conveyed. The important thing was that the message was quickly communicated. The EC Framework Directive on Health and Safety provides that workers must immediately inform an employer of serious and immediate dangers to health and safety – and he shouldn't fear reprisal for doing so.

But, taking industrial action was not a "reasonable means" of bringing health and safety concerns to an employer's attention. Nor could it amount to "informing" within the meaning of the Directive. Although, in exceptional circumstances, communication could be by action rather than by words, the concept of informing the employer could not extend to taking industrial action to impress upon the employer the seriousness of the issue.

The employment tribunal had been wrong to decide that the applicants had used "reasonable means" to draw their concerns about health and safety matters to the employers' attention by going out on strike and refusing to return to work.