In Newbound –v- Thames Water the Court of Appeal has recently upheld the ruling of the Employment Tribunal that Mr Newbound had been unfairly dismissed for gross misconduct despite his breaching company health and safety rules.
The case highlights the difficulties faced by employers trying to enforce compliance with new health and safety procedures, but at the same time contains some useful lessons on how such findings can be avoided in future.
Mr Newbound was dismissed for gross misconduct after entering a Class C sewer without breathing equipment. His manager had allowed him to enter the sewer without the equipment having checked the gas readings and finding what he regarded as a sufficient level of oxygen in the sewer. Both had gone against the terms of a new Thames Water risk assessment and method statement which stipulated that breathing apparatus should be used in those conditions.
The manager was not dismissed but received a final written warning. Thames Water said this was due to:
- the difference in experience – the manager was fairly inexperienced whereas Mr Newbound had worked for Thames Water for 34 years;
- the fact that the manager felt pressured by the much more experienced Mr Newbound to finish the job quickly; and
- the manager expressing remorse in relation to the incident, which Mr Newbound had not.
The ET Judge had held that Mr Newbound was unfairly dismissed but the EAT overturned the ET’s decision, finding that the decision represented to a certain degree the ET’s own view of the employee’s culpability rather than an assessment of whether the dismissal was within the range of reasonable responses open to the employer.
The Court of Appeal noted certain key findings of fact outlined by the ET Judge in his judgement:
- the new risk assessment and method statement had only been introduced fairly recently; and
- Mr Newbound had not been made aware by Thames Water of the significance of the new assessment, or trained on it; even though
- He had previously been allowed to use his own discretion when it came to using breathing apparatus; and
- earlier decisions not to use breathing apparatus in such conditions had not resulted in disciplinary action.
Based on these facts, the ET had found that:
- no reasonable employer would have dismissed Mr Newbound; and (less convincingly)
- the difference in treatment between him and the manager was inequitable and unfair.
- 40% should be deducted from the compensation due to contributory culpable conduct on Mr Newbound’s part.
The Court of Appeal held that as the ET had not made any error of in law in the first instance (i.e. the ET had indeed considered whether the dismissal was a reasonable response of a reasonable employer), it was entitled to find unfair dismissal.
The Message for Employers
On the face of it this is a harsh decision for employers. All Thames Water was doing was trying to uphold its health and safety duties and safeguard its staff by enforcing a risk assessment and method statement in relation to the use of breathing apparatus in hazardous conditions.
However, bearing in mind the reasoning of the ET, the case demonstrates that the issue of new procedures and risk assessments cannot by itself themselves be seen as a solution that discharges health and safety duties; any new procedures need to be coupled with a proper “launch” and appropriate training and their significance should always be communicated effectively to employees.
In addition, where serious issues of health and safety are concerned, Employment Tribunals will be reluctant to let managers off the hook on the grounds of relative inexperience or seeming feebleness in the face of pressure to take potentially dangerous short-cuts. Where employees in similar circumstances are treated differently without good reason, this may prejudice legal fairness.