Dismissal of an employee with 34 years service for gross misconduct, held to be unfair by Court of Appeal
In the case of Newbound V Thames Water Utilities, the Claimant was an experienced sewer worker, with 34 years exemplary service record. The incident which resulted in his dismissal, was due to him having conducted an annual inspection without wearing breathing apparatus, which was in contravention with a newly introduced safe system at work form. As a result of the Claimants failure to comply with this heath and safety policy, he was summarily dismissed, where as in contrast the employee in charge of the sewer entry, who had authorised the Claimants access, was only issued with a written warning.
The Employment Tribunal found that the Claimant had been unfairly dismissed, taking the view that the decision did not fall within the band of reasonable responses available to the employer. They did however also find that there was contributory fault and so reduced the Claimants compensation by 40% accordingly.
The Employment Appeal Tribunal then overturned the decision, finding that the employment tribunal had wrongly substituted their view of the seriousness of the disciplinary offence for that of the employer.
However, the Court of Appeal has now reinstated the employment tribunals decision. Factors taken into account included the fact that the form was a relatively new document and the Claimant had not received any training as to its significance, and neither had it been made clear that failure to wear the correct equipment would result in a dismissal. It was also relevant that the practice of entering sewers without breathing apparatus had been condoned for many years. The Claimant had in the past exercised his discretion not to wear breathing apparatus and the Respondent had never questioned or disciplined the Claimant, but had respected his decision based on his experience and knowledge. It was also apparent to the Court of Appeal, that the employment appeal tribunal had failed to give sufficient weight to the Claimant’s length of service. The Court of Appeal also held that it was unfair due to the fact that the Claimants colleague had only been issued with a written warning, resulting in a clear disparity of treatment.
The important lesson to be learnt from this case therefore, is that even when the allegation, and one as serious as a breach of health and safety, has occurred, as an employer you must take all factors into consideration, which includes length of service and applying the disciplinary policy fairly. It would also be advisable to ensure when introducing a new system or form, that all staff are trained as to its importance and the consequences of not adhering to it.