The Court of Appeal has held that a senior employee who had 34 years’ unblemished service before being summarily dismissed for gross misconduct was unfairly dismissed because no reasonable employer would have dismissed him in the circumstances.


Mr Newbound was responsible for the annual inspection of the penstocks that regulate water flow in sewers. On the day of an inspection at one site, Mr New-bound’s manager went through the safety requirements including the new safe system of work form and made it clear to him that breathing apparatus should be used. However, Mr Newbound instead entered the sewer with a contractor wearing a dust mask and taking a gas monitor to review air quality, having discussed this first with the ‘competent person in charge’, Mr Andrews.

Mr Newbound was subjected to disciplinary proceedings but was not interviewed as part of the investigation. At the hearing, he admitted that he had signed the health and safety form but had not read it fully. He had not seen the form before, had not been trained in its use and thought it was a method statement. He assumed the breathing apparatus was available for use in case it was needed but had made the decision not to use it based on his experience. He acknowledged that he had made an error of judgement, apologised and offered to take refresher training. He asked for his 34 years of service to be taken into account.

Despite this, Mr Newbound was summarily dismissed for gross misconduct, having committed a serious breach of the company’s health and safety policy. Mr Andrews received a written warning and was required to undertake an improvement plan.

Mr Newbound claimed unfair dismissal and his claim went up to the Court of Appeal.

What does this mean?

The Court held that the dismissal was unfair because Mr Newbound had not been trained in the significance of a relatively new safe system of work form. He had previously exercised his discretion whether to use breathing apparatus and his earlier decisions had not resulted in disciplinary action as his employer had been prepared to rely on his skill, knowledge and experience. It had never been made clear to Mr Newbound that failure to wear breathing apparatus would now be viewed as gross misconduct.

In addition, the company had not given any credence to the fact that Mr Newbound had accepted that he had not worn the apparatus, had shown remorse and offered to be retrained. No weight was given to his length of service and his clean disciplinary record. The dismissal was also unfair by comparison with the disciplinary treatment of Mr Andrews, who had been in overall charge and who was only given a written warning.

The Court held that there is no special rule about assessing the reasonableness of a dismissal on conduct grounds where the alleged misconduct involves a breach of health and safety requirements. There is no rule that Tribunals should give a very wide margin of appreciation to employers in health and safety issues.

The Court in this case emphasised that the ‘band of reasonable responses’ is not infinitely wide. When deciding whether an employer has acted reasonably or unreasonably in deciding to dismiss, a Tribunal should make its decision ‘in accordance with equity and the substantial merits of the case’. It should not be a matter of procedural box-ticking.

What should employers do?

Employers should always make it clear to employees what constitutes gross misconduct and take into account all the mitigating factors before making a decision to dismiss. They should also ensure that they treat employees consistently.

Case reference: Newbound v Thames Water Utilities Limited