Duty to dismiss employee

Coxall v Goodyear Great Britain Ltd ([2002] EWCA Civ 1010)

In Withers v Perry Chain Co Ltd [1961] 1 WLR 1314 it was held that there was no obligation at common law on an employer to dismiss an employee who knew of the risk arising from properly planned and safe work that was willing to continue working. There are two competing principles: on the one hand the desire of the common law to refrain from imposing a restriction upon the freedom of the individual; on the other hand, the need for employers to bear some overall responsibility for the health and safety of their workforce. In the present case, the claimant began to suffer symptoms of asthma after the introduction of a new paint. He was seen by the company doctor who advised him that he should not work with the new paint and wrote a memo in similar terms to the defendant employer. The claimant continued to work with the new paint and shortly afterwards suffered a collapse and was certified unfit to work. Although the Withers principle remains good law, the magnitude of the risk is a factor. The defendants were negligent because they failed to follow the advice of their own doctor that the claimant should not continue working with the new paint. The case must not be read as establishing any new principle; the argument had not ranged sufficiently widely for a proper reconsideration of the Withers principle. The decision was on the limited basis that the defendants ought to have discussed with the claimant the available options once the company doctor had advised that he should no longer work with the new paint. The defendants failed to do so, and were therefore negligent.