Security Guard's Appeal Over Health and Safety Claim Fails at Employment Appeal Tribunal
A security guard's appeal regarding a health and safety claim has been dismissed by the Employment Appeal Tribunal, who upheld previous findings.
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Procedural Fairness and 'Designated' Worker Status Examined
An appeal brought by a security guard, Mr R J Bryce, against Active Security Solutions Limited and Stonegate Pub Company Limited, has been unsuccessful at the Employment Appeal Tribunal (EAT). The appeal, which raised concerns about procedural fairness and the interpretation of health and safety at work legislation, was ultimately refused.
Key Issues in the Appeal
Mr Bryce, a door supervisor, had brought a range of complaints against his employers following an incident in August 2021. One of his core arguments related to being sent home after police involvement, which he contended was a detriment due to carrying out designated health and safety activities. He also claimed that the Employment Tribunal had erred by refusing his request for a written response to oral submissions made by the respondents, arguing this was a necessary reasonable adjustment due to his Asperger's Syndrome and dyslexia.
Tribunal's Decision on Procedural Fairness
The EAT considered Mr Bryce's first ground of appeal concerning procedural fairness. While acknowledging the tribunal's duty to ensure fairness, particularly for parties with disabilities, the EAT found that Mr Bryce had not demonstrated that the tribunal's refusal to allow a written response after the hearing caused actual unfairness. The tribunal had provided an extended break for him to prepare his oral response, and crucially, the pre-hearing materials had set out the essence of the respondents' applications. The EAT concluded that Mr Bryce had not identified specific material points that were relied upon by the tribunal but not foreshadowed in the written materials, nor had he shown what further or different submissions he would have made in writing.
'Designated' Worker Status Under Section 44 ERA
The second ground of appeal focused on the interpretation of "designated" for the purposes of section 44 of the Employment Rights Act 1996. This section protects employees from detriment for carrying out designated health and safety activities. Mr Bryce argued the tribunal had erred in concluding he was not "designated." However, the EAT upheld the tribunal's decision, referring to the precedent set in Castano v. London General Transport Services Limited. This case established that simply having health and safety duties as part of an ordinary role does not equate to being "designated" under the Act. The EAT found Castano was not manifestly wrong and therefore bound to follow it.
Detriment Claim Deemed Academic
The third ground of appeal argued that the tribunal had wrongly concluded that being sent home was not a "detriment." While the EAT suggested the tribunal may have erred in its approach to the definition of detriment, this point was deemed academic. Because the core claim under section 44 ERA, based on "designated" worker status, had failed under the second ground, the issue of detriment became irrelevant to the outcome of the appeal.
In summary, the Employment Appeal Tribunal dismissed Mr Bryce's appeal on all grounds, upholding the original tribunal's findings on procedural fairness and the interpretation of health and safety legislation.
Read the entire judgement here: Mr R J Bryce v Active Security Solutions Ltd & Anor.
