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Unfair dismissal warning from the sewers!

11-08-2015

An employee who was dismissed after failing to follow newly implemented H&S guidelines has succeeded with his claim for unfair dismissal in the Court of Appeal.  

Newbound v Thames Water Utilities involved an experienced sewer worker with 34 years continuous service, who was dismissed for gross misconduct after he entered a sewer to conduct a routine, annual inspection without wearing breathing apparatus. His actions were in breach of newly introduced safety requirements of his employer, Thames Water.

A key issue in the claim was the disparity in the treatment of Mr Newbound, who was dismissed, and the treatment of his manager, who had overall responsibility and permitted Mr Newbound to enter the sewer without breathing apparatus, but who was given only a written warning.

Thames Water sought to argue that the different treatment was as a result of the difference in the amount of experience each had as the manager was quite inexperienced whereas Mr Newbound had worked for the company for over thirty years.

In reaching its judgement, the Court of Appeal emphasised that the new risk assessment form had been introduced recently yet Thames Water had taken no specific action to train Mr Newbound or ensure that he understood the importance of the new assessment.

In addition, Mr Newbound had previously been allowed to use his own discretion about whether or not to use breathing apparatus and had not been subject to any disciplinary action as a consequence. They also highlighted that his long service and a clean disciplinary record should not have been discounted.

Therefore, the Court upheld the original ruling of the first Employment Tribunal confirming that the decision to dismiss by Thames Water was not reasonable and that the difference in treatment between him and his manager was unfair. They also upheld a reduction in the compensation awarded of 40 per cent for Mr Newbound’s conduct that contributed to his dismissal, approving the previous compensation award.

This decision is a warning to companies that it is not enough to simply issue new procedures and risk assessment requirements, you must make sure that all employees are aware of the changes and are properly trained. In addition, if failure to follow a new procedure will result in disciplinary action, then employers need to make that clear. This would equally apply to any changes in practice or procedure.

Finally, this case also demonstrates the difficulties with treating managers differently to other employees, which will only be justified in rare circumstances and also highlights the need to consider the previous performance of the employee concerned.

If you have any queries about this case or any employment law matters, please contact Julie Taylor on 01635 508181 or [email protected]


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