UK: Sticks And Stones May Break My Bones But Will Names Never Hurt Me?

Last Updated: 23 October 2000

Concerns about bullying and harassment at work have increased in recent years and following the recent case of Harvest Press -v- McCaffrey may have found a new voice, through the use of Section 100(1)(d) Employment Rights Act 1996 (ERA). This section makes automatically unfair the dismissal of an employee who leaves or refuses to return to his workplace because he reasonably believes he is in "serious and imminent danger" and cannot reasonably avert that danger.

Mr McCaffrey was employed as a machine minder. He worked night shifts along with one other considerably younger colleague. He considered that his colleague was behaving threateningly towards him and made a complaint about his behaviour to management. A meeting was arranged to discuss the issue but the night before it was scheduled to take place, Mr McCaffrey’s colleague was particularly abusive. He attempted to call his Manager on the telephone but was unable to do so due to the level of threat and abuse to which his colleague was then subjecting him. He was so alarmed that he decided to go home mid-shift and call his Manager from there. On speaking to his Manager Mr McCaffrey said that he was not prepared to return to work unless he received assurances about his safety, in effect requesting that the abusive colleague be dismissed or at least removed from the night shift. Harvest investigated the incident and spoke to the alleged abuser and day shift workers. However, it did not ask Mr McCaffrey for his version of events and chose to accept his colleague’s account. Harvest telephoned Mr McCaffrey and advised him that it considered that by walking out mid-shift he had resigned.

Mr McCaffrey complained to an Employment Tribunal that he had been dismissed in circumstances which were covered by s.100 (1)(d) of the Employment Rights Act 1996 and that the dismissal was therefore automatically unfair. He argued that the reason for his dismissal was that because the conduct of his colleague amounted to circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he had left (and while the danger persisted had refused to return to) his place of work. The Tribunal found that because there was no-one else in the factory on the night shift and the alleged abuser was half the employee’s age and unpredictable, it was reasonable for the employee to believe he was in serious and imminent danger and that there was no other reasonable way of averting danger other than by leaving the workplace. Mr McCaffrey won his claim.

Harvest appealed against the Tribunal’s decision, most notably in relation to the interpretation of the word ‘danger’. The EAT rejected its contention that ‘danger’ related only to the physical state of the work premises – this was too narrow a view. For example, an otherwise safe workplace may become dangerous because of the actions or omissions of an inexperienced or untrained employee. S.100 (1)(d) covered all these situations and if a worker walked out in consequence he was entitled to protection. On this basis the EAT upheld the Tribunal’s decision that Mr McCaffrey had been automatically unfairly dismissed.

This case clearly illustrates that where bullying or harassment amount to threats of physical violence this may be covered by s.100. Where the employee claims to be serious and imminent danger of psychological harm there will be obvious issues of proof to be resolved but otherwise there is no reason why s.100 should not also apply.

Certainly given the decision in the McCaffrey case employers should review their health and safety policies to ensure that they reflect this interpretation of ‘danger’. Employers should also ensure that any allegations of bullying by employees are thoroughly investigated and appropriate action taken. A failure properly to investigate and act could leave an employer open to an employee resigning and claiming unfair constructive dismissal on the grounds of health and safety under s.100. In the recent case of Teasdale v John Walker t/a Blaydon Packaging a Tribunal decided that a breach of the employer’s duty to take reasonable care of an employee’s health and safety entitled him to resign and claim constructive dismissal. Because the reason for the dismissal fell within s.100 it was automatically unfair. Additionally the employer can seek to reduce the scope for an employee’s belief in the existence and/or seriousness of the danger. If in Harvest there had been other staff around or easier access to a Manager for Mr McCaffrey he might not have been able to claim that he reasonably believed himself to be in serious and imminent danger or that that risk could not reasonably be averted.


The Government has unveiled the consultation paper introducing the Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000, which are designed to ensure equal treatment for part-timers. The draft Regulations set out requirements that part-timers should receive the same hourly rates as comparable full-time employees, receive the same overtime rates as full-time employees (once they have worked more than the normal full time hours), not be excluded from training because they work part-time and have the same entitlements pro rata to annual leave and maternity/parental leave.

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

For further information please contact Susan Nickson, Employment.

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