Disciplinary Procedures

In Newbound v Thames Water Utilities Ltd, the Court of Appeal has restored an Employment Tribunal’s decision that the Claimant was unfairly dismissed for a breach of his employer’s health and safety procedures.

The case is a reminder that, although an employer’s decision to dismiss must only be within a band of reasonable responses to be fair, that band is limited. In particular, dismissals for misconduct are likely to be outside the band of reasonable responses where there is a disparity in treatment between employees and where the rules relied upon have not been sufficiently well publicised.

The facts of the case

Mr. Newbound had been employed in sewer maintenance by Thames Water for 34 years. In summer 2011, Mr. Newbound was assigned to an annual inspection of a sewer in East London. He discussed the work with his manager beforehand and it was agreed that the work would be conducted with the benefit of breathing apparatus feeding air from above ground. They then went through the safe system of work form, SHE4, which applies to more complex tasks. The SHE4 was a new document and stipulated that breathing apparatus must be used. Mr. Newbound was to work alongside Mr. King (a contractor) and Mr. Andrews, “the competent person in charge”, responsible for health, safety and entry.

Whilst on site, Mr. Newbound, Mr. King and Mr. Andrews discussed whether they in fact needed the breathing apparatus. Following a gas test, they took the view that they did not. This subsequently came to Mr. Newbound’s manager’s attention.

Continue Reading Just how wide is the band of reasonable responses for misconduct dismissals?