• Robert Spicer

Health and safety unfair dismissal: reasonableness: Court of Appeal decision

UNFAIR DISMISSAL

Reasonableness

Case Newbound v Thames Water Utilities Ltd [2015] IRLR 734, CA

Statute reference Employment Rights Act 1996, s.98(4)

Facts N was employed by T to maintain mechanical devices in sewers. He was instructed to use breathing apparatus. He entered the sewer wearing only a respiratory dust mask and was removed by a safety team on the basis that the work could not continue for health and safety reasons. A disciplinary investigation found that N was a senior employee and should have been fully aware of the high risk nature of the operation and the additional safety precautions required. N was dismissed for gross misconduct for seriously infringing health and safety rules. He complained of unfair dismissal. The ET found in his favour on the basis that no reasonable employer would have dismissed him in the circumstances. The employer appealed to the EAT, relying in part on a letter from Unison to N stating that his unfair dismissal claim had no reasonable prospect of success. The EAT upheld the appeal. N appealed to the Court of Appeal.

Decision 1. The appeal was allowed.

  1. An ET was entitled to find that a dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer.

  2. The practice of entering sewers without breathing apparatus had been condoned for many years.

  3. It had not been made clear to N that failing to wear breathing apparatus would justify dismissal.

  4. Length of service was not forbidden territory for the ET.

  5. N had been treated differently from a colleague.

  6. There was a real possibility of apparent bias: a lay member of the EAT was the national secretary of Unison.

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