Dismissal Kicks up a Stink at Sewage Works

A worker who was dismissed after failing to follow new health and safety procedures has won his claim for unfair dismissal in the Court of Appeal.

The worker, Robert Newbound, was employed by Thames Water Utilities for almost 35 years and had a clean disciplinary record.

The allegation against him was that he had failed to use breathing apparatus when entering into a sewer on two occasions; both occasions involved the same sewer on the same day (he had left the sewer to await the arrival of additional safety equipment). He admitted to the allegation straight away.

Before the incident that led to his dismissal, Robert Newbound had entered into a sewer without breathing apparatus on numerous occasions. He had exercised his discretion, based on gas readings, as to whether breathing apparatus was necessary and the Respondent had been happy for him to do this.

The Respondent then changed the rules and required that breathing apparatus be worn as a matter of health and safety; they were of course within their rights to do so. No training was given in relation to this new requirement. However, the new requirement was set out in a document which Robert Newbound was asked to sign before he entered the sewer on the day in question.

The document was in the same format as an earlier version of the same document that did not include the new requirement. Robert Newbound gave evidence that he did not notice the inclusion of the new requirement when he signed the document, that he was in a rush to start work and that the manager with him at the time had not pointed out the new requirement.

It was also noted that there was a manager on site who was aware that Robert Newbound had gone into the sewer twice without breathing apparatus and had not stopped him on either occasion. Robert Newbound (who claimed not to be aware of the new requirement) was dismissed because the Respondent concluded that his experience should have meant that he knew better; the manager (who was aware of the new requirement) was given a written warning.

On these facts, do you agree with the Court of Appeal that his dismissal was unfair?

The Judge at the Employment Tribunal found that the decision to dismiss Robert Newbound was unfair because: his length of service and clean disciplinary record was not taken into account by the Respondent and he was not made aware of the significance of the new requirement (e.g. because he was not trained in relation to the new requirement, it was not pointed out to him in the document he signed, and he was not advised by the manager at the sewer that he may be dismissed if he didn’t wear breathing apparatus). Further, the Employment Judge held that the difference in treatment between Robert Newbound who was dismissed and the manager who got a written warning was unjustified and also rendered the dismissal unfair.

However, the Employment Judge did conclude that Robert Newbound had made a 40% contribution to his dismissal by not reading the document he signed more carefully and so any award of compensation made would be reduced by 40% to reflect this.

The Employment Appeal Tribunal actually overturned this decision, and then the Court of Appeal reinstated it – so you can see it has divided opinion!

As always, if you have any queries or want to let me know what you think of this then do get in touch at katebooth@eatonsmith.co.uk or on 01484 821309

Remember our next Employment Workshop is on 8th September and we’ll be looking at how to investigate a disciplinary issue. The workshop is £49 plus VAT – please let me know if you’d like to book on.

Posted Friday 23rd of October 2015