In Newbound v Thames Water Utilities Ltd, the Court of Appeal has restored an Employment Tribunal’s decision that the Claimant was unfairly dismissed for a breach of his employer’s health and safety procedures.

The case is a reminder that, although an employer’s decision to dismiss must only be within a band of reasonable responses to be fair, that band is limited. In particular, dismissals for misconduct are likely to be outside the band of reasonable responses where there is a disparity in treatment between employees and where the rules relied upon have not been sufficiently well publicised.

The facts of the case

Mr. Newbound had been employed in sewer maintenance by Thames Water for 34 years. In summer 2011, Mr. Newbound was assigned to an annual inspection of a sewer in East London. He discussed the work with his manager beforehand and it was agreed that the work would be conducted with the benefit of breathing apparatus feeding air from above ground. They then went through the safe system of work form, SHE4, which applies to more complex tasks. The SHE4 was a new document and stipulated that breathing apparatus must be used. Mr. Newbound was to work alongside Mr. King (a contractor) and Mr. Andrews, “the competent person in charge”, responsible for health, safety and entry.

Whilst on site, Mr. Newbound, Mr. King and Mr. Andrews discussed whether they in fact needed the breathing apparatus. Following a gas test, they took the view that they did not. This subsequently came to Mr. Newbound’s manager’s attention.

Following an investigation and disciplinary procedure, Mr. Newbound was summarily dismissed for gross misconduct. However, Mr. Andrews received only a written warning on the basis that he was less experienced and it was felt that he had shown more remorse.

The Employment Tribunal decided that the dismissal was unfair. However, on appeal, the Employment Appeal Tribunal overturned that decision, finding that the Employment Tribunal had incorrectly imposed its own view of the seriousness of the misconduct (rather than applying the band of reasonable responses test).

The decision of the Court of Appeal

On further appeal to the Court of Appeal, the Employment Tribunal’s original finding of unfair dismissal was restored. The Court of Appeal emphasised that it was for the Employment Tribunal to determine the facts of the case and its decision, based on those facts, should only be overturned where there is an error of law or that decision is perverse. In reviewing the Employment Tribunal’s decision, the Court of Appeal paid particular attention to the following findings of fact:

  1. During Mr. Newbound’s long service, Thames Water had given him considerable discretion in how he carried out his work, including in relation to breathing apparatus.
  2. The SHE4 was only recently introduced and Mr. Newbound had received insufficient training on its significance.
  3. Although the requirement for breathing apparatus in the SHE4 was discussed between Mr. Newbound and his manager, this was done quickly and the potential disciplinary consequences of failing to use the apparatus was not explained to Mr. Newbound.
  4. Mr. Andrews had also failed to comply with SHE4 in relation to the breathing apparatus. Even though he was in charge of the health and safety aspects of the work undertaken, he was treated more leniently.

In light of these facts, the Court of Appeal was satisfied that the Employment Tribunal had applied the correct test and was entitled to conclude that dismissal was not within the band of reasonable responses open to Thames Water. This was particularly so given the disparity in treatment between Mr. Newbound and Mr. Andrews.

In reaching this finding, it was noted that the band of reasonable responses is not infinitely wide. The assessment of whether a dismissal fell within that band is also to be determined in accordance with equity and the substantial merits of the case, which the Employment Tribunal had done.

What does the case mean?

There is often a perception that employers will be given significant latitude to decide whether dismissal is appropriate where there have been breaches of health and safety rules. This case highlights that such latitude will only go so far, and also the importance of consistent treatment in relation to the same incident as well as similar incidents in the past.