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Health and Safety Breaches and Gross Misconduct

August 2015

The Court of Appeal handed down a fascinating judgment in July concerning a gross misconduct dismissal on the grounds of a serious breach of Health and Safety Regulations.

Mr Newbound had worked for Thames Water for 34 years.  He had an excellent disciplinary record.  He was, however, summarily dismissed after an investigation into an incident whereby he conducted an annual sewer inspection without wearing breathing apparatus.  This was in direct contravention of a recently introduced policy by his employer which demanded that breathing apparatus had to be used for sewer inspections.

Mr Newbound did not wear breathing apparatus when he entered the sewer.  Significantly, the officer in charge of sewer entry allowed Mr Newbound to enter the sewer without his breathing apparatus.  That officer was not charged with gross misconduct but only misconduct which was not a sackable offence.  He was given a warning.

At the initial Tribunal Hearing the Employment Judge found that the Claimant had been unfairly dismissed but the Employment Appeal Tribunal reversed that decision on the basis that the Employment Judge had wrongly substituted his own view.

On appeal the Court of Appeal reinstated the Employment Tribunal Judge’s decision and declared that the dismissal was unfair.  Crucial to their determination was the fact that the requirement to wear breathing apparatus was contained in a recent procedure and Mr Newbound had not been specifically trained in its significance.  Also Mr Newbound was an employee with many years’ service and no-one made it clear to him that failure to wear breathing apparatus could amount to gross misconduct justifying dismissal.

The Court of Appeal also stressed that insufficient weight had been given to his 34 years of service with a clean disciplinary record and that on previous occasions the employer had been content to rely on Mr Newbound’s skill.

Finally, the Court of Appeal held that there was a clear disparity between the treatment of the Supervisor who allowed Mr Newbound entrance to the sewer being charged only with misconduct and given a written warning and Mr Newbound who was charged with gross misconduct and dismissed.  There could be no justification for such a disparity in treatment.

I think the lessons to be learned here are:-

  1. If you do introduce a new Health and Safety Policy make sure that everyone is certainly trained in the policy and also that the consequences of failing to adhere to the policy are clearly explained.  In this case Mr Newbound had no idea that a breach of the policy would result in a charge of gross misconduct and dismissal.
  1. When someone has 34 years unblemished service you had better have a very good reason for dismissing them.

Newbound –v- Thames Water Utilities - Court of Appeal July 2015.

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