Risks of assault
In Dutton and Clark Ltd versus Daly (1985), an employee of a travel agency was given the corner of the shop in which to set up an agency of a building society. The employer partitioned off this section and erected a bullet proof screen and counter and installed a dummy video camera with an adjacent notice warning that it was in constant use. The employee also had the protection of warning buttons fitted to the counter, connecting with the travel agency area.
Despite all these precautions, the building society section was robbed twice by gunmen over a very short period. The travel agent would not spend any more money on extra safety precautions as they were not justified in relation to the building society agency takings. The police agreed with this.
However, Mrs Daly was so shaken by the incidents that she needed time off work. Not long after her return two "suspicious" men came into her section causing her great anxiety. Although they turned out to be newspaper reporters she felt she had to leave work. She claimed unfair dismissal compensation on the ground that she had been constructively dismissed.
The industrial tribunal agreed with her but the Employment Appeal Tribunal reversed the decision, laying down two principles.
Firstly, the test of whether an employer is in breach of contract is whether the employer's actions are outside the range of reasonable conduct that anyone would expect of a reasonable employer. Secondly, industrial tribunals must apply this "objective" test and not their own opinion of what the employer should have done.
Since August 1993 the question of dismissal in such circumstances comes under a new section 57A of the Employment Protection (consolidation) Act 1978, which provides that a dismissal is automatically unfair where an employee reasonably believed there was a risk of serious and imminent danger, or had brought to the attention of the employer circumstances which he reasonably believed were harmful to health and safety.
Chris Lowe is honorary legal adviser to the Secondary Heads Association