The claimant in Newbound v Thames Water Utilities Limited was a very experienced sewer worker who had been employed by Thames Water for 34 years. He was summarily dismissed, following investigation into an incident in which he had gone into a sewer to conduct an annual inspection without wearing breathing apparatus.  This was in contravention of safety requirements under a newly introduced safe system of work (SHE4) used by Thames Water for complex activities not covered by the usual risk assessment. The strict obligation to use SHE4 had been made clear in advance by the claimant's manager.

The employee in charge of sewer entry, who allowed the claimant to enter without breathing apparatus, was given a written warning but was not dismissed.

The Employment Judge found that the claimant had been unfairly dismissed, holding that the decision was not one within the band of reasonable responses open to the employer and highlighting the difference in treatment between the claimant and his colleague.  However, the EAT reversed that decision, on the basis that the Employment Judge had substituted his view of the seriousness of the disciplinary offence for that of the employer.

The Court of Appeal has now reinstated the Tribunal's decision.  It regarded three aspects of the case as crucial:

  • The SHE4 was a comparatively recent document
  • The claimant had not been trained in its significance
  • The claimant had in the past "exercised his discretion" whether to use the breathing apparatus and this had not led to disciplinary action because the employer relied on the claimant's skill, knowledge and experience.

There was evidence that for many years the practice of entering sewers without breathing apparatus had been condoned and that, when SHE4 was introduced, no-one made clear to the claimant that in future failure to wear breathing apparatus in sewers would be treated as an offence justifying dismissal. 

In addition, the Court of Appeal approved the Tribunal's finding that the claimant's 34 years of service with a clean disciplinary record had not been given sufficient weight by the employer. 

The Court of Appeal also agreed with the Tribunal that the dismissal would have been unfair because of the disparity of treatment between the claimant and his colleague, notably that:

  • The colleague was only charged with misconduct, not gross misconduct, which meant he could not be dismissed.
  • Unlike the claimant, he was interviewed prior to the disciplinary hearings.

Lord Justice Bean in the Court of Appeal said he had "rarely seen such an obvious case of unjustified disparity".

The decision is a reminder that, whilst in many cases the employer will have the right to decide how best to deal with a serious breach of health and safety discipline, the particular circumstances leading up to an incident will always need to be considered.  The Court of Appeal's endorsement of the continuing relevance of an employee's length of service is also of significance.