Mr R Smith v RDP Metalwork Ltd — 2019

This was a Rule 21 judgment after the Respondent failed to present a response. The tribunal recorded that the claim form had been served, that no response was received by the deadline, and that at a preliminary hearing on 11 December 2019 it had enough material to determine both liability and remedy on the basis of the Claimant's information.

The Claimant was an apprentice metal worker who had raised health and safety concerns about work with acid at the Respondent's factory. He had not been given protective gloves or suitable clothing, had experienced acid coming into contact with his skin, and had previously contacted his training provider, which led to an HSE inspection. The tribunal accepted that the day before his employment ended he raised the lack of protective equipment again with the foreman, said he would report the company to the HSE again, and was dismissed the next day.

The tribunal found that the stated reasons for dismissal, namely poor performance and the college's refusal to take him to level 3, were false. It inferred that the principal reason for dismissal was that the Claimant had made a protected disclosure to the foreman on 6 June 2019 and that this was passed to Mr Kirkpatrick, who decided to terminate employment because of the disclosure and the threatened report to the HSE. On that basis, the tribunal held that the dismissal was automatically unfair under section 103A Employment Rights Act 1996.

The tribunal added that, if it had been wrong about section 103A, it would have found the dismissal unfair under section 100 Employment Rights Act 1996 because there were circumstances of danger, the Claimant reasonably believed the danger was serious and imminent, and he proposed to take appropriate steps by reporting the company to the HSE. On remedy, it found the Claimant's immediate loss of earnings to be £2,756, uplifted by 25% for the Respondent's failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, producing a total award of £3,445. It also recorded that the recoupment provisions applied and that the prescribed element was £3,445 for the period 8 June 2019 to 11 December 2019.