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Sick and Tyred - and stressed as well
One of the great things about being a parent is knowing what's best.
When a child is faced with some instruction, despite any number of sensible and well thought arguments to avoid it, Dad can always reply that "he knows best".
There are, of course, times when an employer wishes it could use the same rationale - in other words, when telling an employee what to do, have the ability to respond to any reluctance simply by saying "look - we know best".
This principle is particularly relevant in cases where an employer is faced with the prospect of dismissing an employee for his or her own good.
This question was examined by the English Court of Appeal in the recent case of Coxall v Goodyear Great Britain [2002] EWCA Civ 1010. The case involved a claim brought by Mr Coxall, who was employed as a worker in a tyre factory. In the course of his work he was required to use a certain type of paint. Protective equipment was provided to him - including a respirator, goggles and gloves.
Despite these measures, however, Mr Coxall suffered health problems. It transpired that he had a previously unknown predisposition to asthma. When this was discovered, his doctor addressed a memo to his supervisor, expressing the opinion that Mr Coxall should not work with the new paint at all.
The case was complicated by the fact that this memo did not reach Mr Coxall's supervisor for a number of weeks. In that period, despite the warning that had been given by his doctor, Mr Coxall chose to soldier on. Within a short time he succumbed to occupational asthma and was certified unfit to work.
The Court held that, up until the time that Mr Coxall saw his doctor the employer had acted reasonably in the way in which it had provided protective equipment to its employees. Having received the advice from Mr Coxall's doctor, however, the Court concluded that the employer was under an obligation - as a matter of last resort - to dismiss Mr Coxall from his job. The employer took issue with this aspect of the decision.
The Court considered a number of precedent authorities which, in essence, enshrined two competing philosophies.
On the one hand, there was some authority to suggest that imposing a restriction upon the freedom of individuals in the way that they worked was foreign to the whole spirit of the common law.
On the other hand, however, a separate line of authority recognised that employers were required to bear some overall responsibility for the health and safety of their workforce.
In conclusion, the Court decided that cases would, from time to time, arise where, despite the employee's desire to remain at work (even being aware of the risk to health of doing so), the employer would be under a duty to dismiss the employee for his or her own good. The Court held that Mr Coxall's case came within this category - and decided that, once appraised of the doctor's memorandum, the employer was under an obligation to dismiss him from work.
The Court added a curious - and important - footnote. It noted that the employer had not raised any issues of contributory negligence - but said that, had it done so, it would have concluded that Mr Coxall was partially to blame for his own injury by choosing to work despite knowing the risks involved. In other words, had the employer raised the point, the Court would have concluded that Mr Coxall's claim should have been reduced to take account of his own actions.
A developing area in respect of which this case may hold particular significance is claims concerning workplace stress. The Department of Labour will shortly issue guidelines concerning the management of a potential harm from work related stress. Amongst other things, those guidelines will make it clear that an individual may have a particular proclivity to suffering harm from work related stress. That is, even if a job may not be inherently stressful, a person performing work may find it so because of a susceptibility to this type of harm.
Difficult issues may arise concerning the way in which an employer should reasonably respond in such a situation. It is possible, for example, that an ordinary person would not suffer any harm in a job - but a particular employee may provide evidence to the employer of a risk to them in performing work.
Backed with some medical advice, the employer may conclude that a sensible course of action would be for the employee simply to cease doing the job. One could imagine, however, that this conclusion may not be popularly received by an employee - and, depending upon particular circumstances, the employee may indicate that he or she is willing to box on despite the risk of harm. Mr Coxall's case lends some support to an employer making a decision to dismiss the employee in these circumstances - despite the stated desire to continue in employment, and agreeing to bear all risks of harm.
More broadly, dismissing an employee in these cases is not inconsistent with the employer's general obligation to ensure safety in its workplace. In one sense, the circumstances outlined above constitute a ticking timebomb for an employer - simply with an assurance from the employee concerned that he or she agrees to bear the risk of a blast. Mr Coxall's case suggests that an employer may reasonably decline this assurance - and may dismiss the employee.
This recent decision of the English Court of Appeal provides some helpful guidance in the way in which employers may manage employees with a known predisposition to harm.
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