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Coxall v Goodyear Great Britain Limited, Court of Appeal

31 July 2002
The issues

Withers -v- Perry Chain Company Limited – duty to dismiss employee – occupational asthma

The facts

He became asthmatic after working as a paint and line operator in a tyre factory owned by the Defendant. He secured a Judgment of £7,500.00 in the action he brought for negligence and breach of duty against his employer. The employer appealed, arguing that following Withers -v- Perry Chain Company Limited an employer was not under a duty to dismiss an employee from work which could be safely undertaken merely because of a particular susceptibility on the employee’s part, which exposed him to a risk of harm.

The decision

1. The Judge at first instance had taken the view that Withers was an old case and that much had changed in the world of employment since 1961, notably the COSHH Regulations. Consequently, he had decided that a failure to dismiss an employee amounted to a breach of the employer’s duty, and that if an exacerbation of the illness occurred, that exacerbation was actionable.

2. However, Withers had been followed by the Court of Appeal itself in Henderson -v- Wakefield Shirt Company Limited in 1997. Moreover, in the recent decision in the stress cases of Hatton and Barber, Lady Justice Hale had quoted Withers as good law (“in principle, the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer’s own good”). Lady Justice Hale had also specifically commented that she was relying on Withers in the context of psychiatric injury. She noted that where the risk was physical danger, the principle in Withers would, taken to its logical conclusion, “justify employers in perpetuating the most unsafe practices on the basis that the employee can always leave”.

3. There was almost a philosophical issue at stake between the parties. It could only be resolved by reference to the individual facts of each case. The general principle was still good law, but it was not a principle that could be accepted in absolute terms without consideration of the magnitude of the risk in question. For example, it could not be right to employ as a spider man, someone known to suffer from vertigo.

4. Cases would undoubtedly arise, when despite the employee’s wish to remain at work, in the awareness of the risk he ran, the employer would still be under a duty in law to dismiss him for his own good, so as to protect him against physical danger.

5. This was such a case. The Works Doctor, Line Manager and Health and Safety Manager all took the view that the Claimant should cease work and they all regarded the matter as being their responsibility. The Court could have no reason to regard that duty as lower than the duty they thought they had themselves. On that ground alone, the Judge had been entitled to distinguish Withers.

Appeal dismissed.

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