S2 HSWA 1974 - The Basis of Unfair Dismissal Law

When HSWA and Capability Overlap

Health and safety duties are not limited to accident prevention. They also play a key role in capability procedures, especially when absence or performance issues are linked to workplace conditions.

Take this example: an employee suffers frequent colds and their absence levels exceed the employer’s trigger point under the absence management policy. At first glance, this looks like a straightforward ill-health capability case. But if the underlying cause is that the employee is working in very low temperatures, or that there is no system of rotation between cold and warmer areas, then the issue becomes one of health and safety. Implementing rotation or transferring the employee to another part of the business could improve attendance and protect health.

If the employer refuses to consider these options simply because the employee is “not disabled” under the Equality Act, they may overlook their duties under section 2 HSWA and the fairness test in section 98(4) ERA. A dismissal in these circumstances could be judged unfair.

📌 Practical tip: If you are facing a capability or disciplinary procedure, don’t just focus on absence levels or performance issues. Highlight specific health and safety concerns that may have contributed. If the employer ignores these, it strengthens any argument that dismissal would be unfair.

Section 98 ERA 1996 and Health & Safety

Health and safety duties do not exist in isolation. When an employer dismisses for capability without considering those duties, the fairness test in section 98(4) ERA 1996 comes into play. The law requires tribunals to look at whether dismissal was reasonable in all the circumstances—including whether the employer acted responsibly in dealing with health and safety risks.

Consider this scenario: an employee suffers frequent colds and their absence levels exceed the employer’s absence policy threshold. The employer decides to pursue ill-health capability. But during the hearing, the employee raises that the absences are caused by exposure to low temperatures in a cold storage area, and that no system of rotation exists. The employee suggests that rotating staff between cold and warmer areas—or transferring them to a different department—would likely improve attendance.

If the employer refuses to consider these options, simply because the employee is not disabled under the Equality Act, they may be acting unreasonably. A dismissal based only on policy triggers, while ignoring health and safety factors, risks being judged unfair.

📌 Practical tip: Always connect your absence or performance issues to health and safety if relevant. Make it clear that simple changes—like rotation, safe equipment, or reassignment—could improve the situation. If the employer presses ahead with dismissal without addressing these, you gain strong grounds for unfair dismissal.

Disciplinary Context – Insubordination or Protection?

Health and safety duties also matter in disciplinary procedures. Employees are sometimes accused of “refusing a reasonable instruction” or labelled as insubordinate when, in fact, they were trying to protect themselves from unsafe work.

Section 2 HSWA 1974 makes it clear: employers must provide safe systems of work, safe equipment, and safe workplace conditions. If a task exposes an employee to unnecessary risk—whether from unsafe machinery, hazardous materials, or unsuitable protective equipment—the employee is entitled to raise those concerns. Refusing to perform unsafe work can therefore be a matter of protection, not misconduct.

For example, if an employee with a known latex allergy refuses to wear latex gloves in a new role, that refusal cannot reasonably be treated as gross insubordination. The correct approach is for the employer to consider safe alternatives. Treating such a refusal as misconduct and proceeding to dismissal may amount to unfair dismissal.

📌 Practical tip: If you are facing a disciplinary charge for refusing an instruction, link your actions directly to health and safety duties. Make it clear that your refusal was about protecting your health or safety, not about disobeying management. This reframes the issue from “insubordination” to “compliance with HSWA.”

Conclusion

Section 2 HSWA 1974 is more than a general safety duty. It is a framework that can directly shape whether a dismissal is fair or unfair. Employers who treat health and safety as irrelevant in capability or disciplinary cases risk breaching their duty of fairness under section 98(4) ERA 1996.

For employees, the key is to raise safety issues clearly, document them, and show how they connect to absence or performance concerns. By doing so, you shift the focus: from being labelled as “underperforming” or “insubordinate” to being recognised as someone upholding workplace safety.

Dismissals that ignore these obligations are vulnerable to challenge—and often judged unfair.

📋 Practical Checklist: Using HSWA in Capability and Disciplinary Cases

• Identify risks – link your absence or performance issues to workplace conditions (e.g. cold environment, heavy lifting, unsafe equipment).

• Raise health and safety explicitly – bring these concerns into the capability or disciplinary hearing.

• Request Occupational Health input – if safety risks are identified, ask for a referral before any dismissal decision.

• Keep records – save all letters, emails, and meeting notes where health and safety was raised.

• Challenge omissions – if outcome letters ignore your health and safety concerns, point this out in your appeal.

• Defend refusals – if accused of insubordination, explain that your refusal was based on health and safety duties, not defiance.