Does Section 65B(1)(d) of Gibraltar’s Employment Act extend to the risk of an injury to an employee’s mental health?
Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis.
Yes, said Gibraltar’s Supreme Court in its decision in Bart Van Thienan and GVC Services Limited: 2020/CIVAP/001
While this case did not deal with the substantive merits of the employee’s claim it dealt with an appeal from the Gibraltar Employment Tribunal which had decided a preliminary issue, that is was a prima facie case made out on the facts which would allow the employees claim to continue in the tribunal. It also involved a consideration by the Supreme Court of Gibraltar as to whether or not the 52 weeks of continuous employment requirement to bring a claim for unfair dismissal extended to situations in which the employee alleged that his presence at work would present a danger to his mental health. The Employment Tribunal at first instance had disallowed the employee’s claim to proceed with his unfair dismissal claim on the basis that he was employed for less than 52 weeks.
In an appeal from the Gibraltar Employment Tribunal the applicant employee in part challenged the view that Section 65B(1)(d) of the Employment Act only applied in cases where there was a risk of physical injury.
The appeal arose as a result of a claim for unfair dismissal in which the employee had been employed for less than 1 year (51 weeks in fact). It is well known by employers that a claim for unfair dismissal cannot normally be brought if the employee has not been continuously employed for less than 1 year, (though there are exceptions). The Employment Act states:
Employment Act: Section 59
(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer.
(2) This section applies to every employment except in so far as its application is excluded by or under any of sections 60 to 63.”
Section 60(1) – Subject to the provisions of subsections (2) to (4) and of section 62, section 59 shall not apply to the dismissal of an employee from any employment if the employee– (a) was not continuously employed for a period of not less than 52 weeks ending with the effective date of termination;”
Section 60(3) however disapplies this qualifying period of 52 weeks in certain circumstances. Section 60(3) provides: “60(3) Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal, or in a redundancy case, for selecting the employee for dismissal, was one of those 4 specified in Section 65A(1)(a) to (e), 65B(1)(a) to (e) or 65C(1)
The employee’s case was the 52-week qualifying period should be disapplied because Section 65B(1)(d) applied in his case.
Section 65B(1)(d) states: “65B.(1) The dismissal of an employee by an employer shall be regarded for the purposes of Sections 59 and 70 as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee– …. (d) in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work;”
In this case, the employee stated that he believed that he could not return to work due to the harm to his mental health which he alleged he was likely to suffer if he did so. While the Employment Tribunal did not make a determination of the point of law contained in Section 65B(1)(d), (though noting it had doubts that it applied in this case) and dismissed the claim because it found that on the facts of the case the claim was not made out.
The Gibraltar Supreme Court while not deciding the substantive merits of the case in the appeal however dealt with the Section 65B(1)(d) issue that was raised by the employee, and came to the unsurprising conclusion that Section 65B(1)(d) did indeed extend to employees where there was a risk of harm which included both physical and mental harm. The employee’s claim for unfair dismissal should continue in the Employment Tribunal because the court found that the claimant had a prima facie case made out, which was the Employment Tribunal’s reason for dismissing the claim. The Supreme Court noted that in this case, the substantive claim and jurisdiction points were one and the same.
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law
Are you an employer looking to defend, or perhaps reduce your exposure to bullying, discrimination, or health and safety claims? Please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar. Telephone (+350) 200 73900, or email me at chris.brunt@phillips.gi for an informal discussion to see how I can assist you.
Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA. Call me on 200 73900 or email me at chris.brunt@phillips.gi for advice to employers on reducing your businesses’ exposure to an unfair dismissal claim – Or, if you are an employee to evaluate your prospects for a claim for unfair dismissal?
All employee cases are considered on a “no win no fee” basis.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
