In a recent decision the Court of Appeal considered the case of Newbound v Thames Water Utilities Limited in which Mr Newbound had worked for Thames Water for 34 years until he was dismissed for gross misconduct.
Mr Newbound’s claim that he was unfairly dismissed had succeeded at the Employment Tribunal (although the Tribunal found he had contributed to his dismissal by 40%). Thames Water appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal, however Mr Newbound then appealed to the Court of Appeal.
Mr Newbound’s job involved inspecting penstock valves, which opened and closed sewers. He and his manager had a discussion about an annual inspection at a particular site. They agreed the date of the inspection and that full breathing apparatus would be available. On the day of the inspection, Mr Newbound, his manager and a contractor, met and went through the safe system of work form together. The manager made it clear that both the contractor and Mr Newbound were to use the breathing apparatus.
When arriving for the inspection, Mr Newbound and the contractor met with the ‘competent person in charge’ at the site. They both entered the sewer without wearing the breathing apparatus. When another manager realised that they had breached procedure, he contacted the next level manager who told him to prepare a report. An investigation took place, followed by a disciplinary procedure on the basis that Mr Newbound was one of the most senior employees involved, he had led the contractor into the sewer and as such should face gross misconduct allegations.
Mr Newbound admitted that he had entered the sewer without breathing apparatus. He said had used his experience in deciding whether to use the breathing apparatus, as he had done in the past. He also argued that he had not been trained in how to complete the safe system of work form. He was summarily dismissed for gross misconduct. He appealed against his dismissal, but the decision to dismiss him was upheld.
Applying the legal test, the dismissal was potentially fair if at the time of the dismissal Thames Water believed Mr Newbound to be guilty of misconduct, had reasonable grounds for believing that he was guilty of that misconduct and had carried out a reasonable investigation. The Tribunal then had to consider whether the decision to dismiss fell within the band of reasonable responses of a reasonable employer in the circumstances, without substituting its own view for that of the employer.This is known as the ‘band of reasonable responses’ test and our regular readers will know it is a common feature of unfair dismissal case law.
In this case, the Employment Tribunal judge held that no reasonable employer would have dismissed Mr Newbound in the circumstances, and his length of service and clean disciplinary record had not been given sufficient weight. The judge also found that it had not been explained to Mr Newbound that failure to wear the breathing apparatus would lead to disciplinary action. Mr Newbound had relied on his own experience to decide whether to use breathing apparatus and this had not led to disciplinary action in the past.
The Employment Tribunal judge also found that the dismissal was unfair because of the disparity in treatment between Mr Newbound who was dismissed for gross misconduct and the ‘compentent person in charge’ at the site, who had received a written warning and had to undergo training. Mr Newbound had not been interviewed as part of the investigation whereas the ‘competent person in charge’ had. The disparity in their treatment could not be justified.
When Thames Water appealed to the EAT, the EAT found that the Employment Tribunal judge had substituted his own views for those of the employer. However the Court of Appeal held that the band of reasonable responses is not infinitely wide, and the Employment Tribunal judge was entitled to find that no reasonable employer would have dismissed Mr Newbound in the circumstances. Therefore, the Tribunal’s finding of unfair dismissal could stand.
This case highlights that it is important that employers ensure that employees are informed about and trained on procedures. Employers should carefully consider how they treat different employees in relation to the same disciplinary incident and how their treatment of the employee compares with how they have dealt with employees in similar circumstances in the past, and be prepared to justify any difference in treatment. If in doubt as to whether a dismissal may fall within the band of reasonable responses, it is always worth taking advice to get an independent view on the appropriateness of the penalty in the circumstances. We are experienced at advising on disciplinary cases of all kinds and a quick call to us can save you becoming embroiled in a costly dispute.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).