On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”.

The “tennis spat”, reported in The Independent, followed a decision by the Lawn Tennis Association and the Wimbledon authorities to ban spectators ‘on health and safety grounds’ from what used to be called Henman Hill and is now Murray Mound following rain which made the grass slippery. The chair of the HSE wrote a public letter to the LTA and Wimbledon authorities pointing out that there is nothing in health and safety legislation to stop people walking up and down wet grassy slopes, something they have been doing “for years without catastrophic consequences”. Judith Hackett pointedly added that “If the LTA was concerned about people slipping and suing for their injuries the message should have made clear the decision was ‘on insurance grounds'”.

Wimbledon hit back. The Chief Executive replied “It must be entirely inappropriate for the chairman of the HSE to make such public comments on decisions reached at an event when you have absolutely no knowledge of the circumstances… To use your own phrase I could not let your ill-informed comments ‘pass unchallenged'”. 15 all there.

The consultation noted above ends on 21 September 2011. While the concept must be entirely right, the title of the consultation (“CD236 – Proposed replacement for the licensing regime for adventure activities established under the Activity Centres (Young Persons’ Safety) Act 1995 in England“) is itself an indication of the difficulties there always are in formalising common sense (as witness for example the ill fated statutory compulsory dispute resolution procedures, repealed and revoked in 2009 after only five years when they were replaced by a less formal Code of Practice).

On the other hand, employers may be concerned about the outcome of a case in the EAT in which an employee was dismissed for refusing on health and safety grounds to do work which their maintenance manager considered to be safe (Oudahar v Esporta Group Ltd, EAT on 22 June 2011). Mr Oudahar was employed as a chef by Esporta Group Ltd in one of their health clubs for just under a year. He refused to mop an area of the kitchen because there were exposed wires hanging from the wall in the same area due to maintenance work being carried out. At a subsequent disciplinary hearing, the company’s maintenance manager said there was no danger and the employer dismissed Mr Oudahar.

Mr Oudahar claimed that his dismissal was automatically unfair as he reasonably believed there was a danger which was “serious and imminent” and that his refusal to mop up the relevant area of the kitchen was an appropriate step “to protect himself … from the danger”. He lost at an employment tribunal but has won on appeal. The EAT held that it is irrelevant under the relevant health and safety section (Employment Rights Act 1996 s.100(1)(e)) that the employer does not agree with his employee that a danger exists or existed. All that matters for dismissal to be automatically unfair under that provision is that the employee held an honest and reasonable belief that the danger existed.

The overall message for employers is thus wonderfully unclear – but also that complete clarity is neither possible nor desirable. The message is essentially that common sense should rule throughout and that where there is doubt, it is prudent to err on the side of ensuring that health and safety of workers is not endangered.