Fair dismissal for health and safety issue

11 September 2015

Mr Newbound was dismissed after 34 years when he failed to use the correct breathing apparatus during a sewer inspection. The site manager was given a written warning.

Newbound v Thames Water Utilities

Mr Newbound was dismissed after 34 years when he failed to use the correct breathing apparatus during a sewer inspection. The site manager was given a written warning.

The tribunal found that Mr Newbound’s dismissal was unfair, reducing compensation by 40% for contributory fault. The site manager was in charge; the health and safety requirements had changed and Mr Newbound hadn’t been told about the disciplinary consequences of not using the appropriate equipment. There was also the relevance of his length of service and clean record to take into account.

The Employment Appeal Tribunal overturned that decision. But the Court of Appeal agreed with the original tribunal. It was relevant that this wasn’t the first time this sort of practice had happened; in fact there was evidence that it had been condoned by the employer. Also, in the past, Mr Newbound had used his own discretion to decide whether or not to weather breathing equipment. The tribunal had been entitled to find that no reasonable employer would have dismissed in the circumstances.

One interesting point for employers to take away from this case was the Court of Appeal’s confirmation that the dismissal was also unfair on the grounds of the different treatment of Mr Newbound and his site manager. It was an obvious case of unjustified disparity, the Court said. So when you’re making disciplinary decisions in circumstances where more than one person is involved, be consistent and be fair.

 


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