Neill Smyth v Brighton and Hove Albion Football Club — 2023

Neill Smyth was employed by Brighton and Hove Albion Football Club Limited from 21 June 2011 to 21 May 2021, most recently as a Security Supervisor at the Training Ground. He brought claims for health and safety detriment under s.44 ERA 1996, constructive unfair dismissal, and automatic unfair dismissal under s.100 ERA 1996. The tribunal dismissed all claims.

On the unloading of kit, the tribunal found that the task formed part of the Security Team's contractual duties, that the team had manual handling training, and that wheeled frames were used to reduce risk. It accepted that Smyth objected to the task and raised health and safety concerns, but found the respondent's requirement was reasonable and lawful. On COVID-19 issues, the tribunal found the club had comprehensive policies and protocols, including cleaning and PPE arrangements, and that the security office and gatehouse were deep cleaned daily. It also found fogging was arranged within a reasonable timescale after Smyth asked for it.

The tribunal rejected the complaint that Smyth should have been directly told about a colleague's positive COVID-19 test, finding there was no requirement to inform him because he had not been in contact with that individual. It also found the email raising concerns about CCTV use was a measured and reasonable response to what appeared to be unauthorised review of footage, and that the meeting invitation about kit unloading was a fair opportunity to discuss an ongoing dispute. The handling of Smyth's sickness absence, counselling support, and grievance were all found to have been reasonable and not to amount to a detriment within the meaning of s.44 ERA 1996, applying the detriment approach cited from Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.

On constructive unfair dismissal, the tribunal found no breach of express or implied terms, including no breach of mutual trust and confidence. It held that the respondent had reasonable and proper cause for its actions, and that Smyth resigned on 22 April 2021 because he had secured alternative employment, not because of any repudiatory breach. Because the tribunal found that he resigned rather than being dismissed, the automatic unfair dismissal claim under s.100 ERA 1996 also failed.