Kevin's Dismissal - Case Study Example

Davis' company rules define such conduct as gross misconduct with the result that the employee in question is subject to summary dismissal. This kind of conduct is considered gross conduct since the employer considers that machinery should be operated by a specific number of employees. The first issue is therefore whether or not such a standard and rule by Davis is fair and reasonable. Having regard to onerous duty placed upon the employee by virtue of Section 2 of the Health and Safety at Work Act 1974, such a standard and rule is fair and reasonable in the circumstances.

Section 2(2) provides as follows: ".the matters to which that duty extends include, in particular - the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; the provision of such information, instruction, training and supervision as is necessary to ensure, so employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

"1 This statutory duty on the part of the employer was preceded by a common law duty to provide for the health and safety of all employees.2 The House of Lords held in Wilsons & Clyde Coal Co. Ltd v English [1937] 3 All ER 628 that the duty was "personal to the employer."3 The duty to provide a safe place of work is for the safety of all employees and the nature of both the statutory and common law duty is such that it gives rise to what might be a strict liability. Having regard to the consequences of a breach of such duty it is not unfair nor is it unreasonable for Davis to have in place rules that require a designated number of employees to operate its machinery.

It is assumed that should the machinery be under operated it could render the machinery unsafe with the result that Davis is liable for any resulting harm to its employees. Moreover in 1993 the Management of Health and Safety at Work Regulations 1992 were implemented and fortified the nature of the employer's duty to provide a safe and healthy workplace. Upon a broad interpretation of the 1992 Management of Health and Safety at Work Regulations that duty is unquestionably a strict duty. The 1992 regulations imposes upon the employer a continuing duty to ensure that all health risks are eliminated or at the very least minimized.

This continuing duty is necessary:".for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed on him by or under the relevant statutory provisions."4 It therefore follows that the rule implemented by Davis to ensure that a specific number of employees operate machinery is fair and reasonable having regard to the statutory and common law duty to guard against risks to its employee's safety. Certainly Davis is entitled to take steps to ensure that the risk of harm associated with under manning the machinery is alleviated.

In Walker v Northumberland County Council [1995] IRLR 35 it was held that once an employer becomes aware of the risk to employees' health, the employer is duty bound to take steps to alleviate that risk.5 Obviously, Davis has decided to alleviate the risk of harm by designating wilful failure to report to the