Gross misconduct dismissal unfair for employee with 34 years' clean record

The Court of Appeal has restored an employment judge’s decision that an employee was unfairly dismissed because no reasonable employer would have dismissed him in the circumstances.

The Court of Appeal held that the employment judge’s findings of fact entitled him to conclude that the dismissal had also been unfair by comparison with the disciplinary treatment of another employee involved in the same incident.

In case of Newbound v Thames Water Utilities, the Court of Appeal looked at whether an employee, who had his employment terminated for gross misconduct after a serious breach of health and safety rules, had been unfairly dismissed.

Mr Newbound was an experienced sewer worker who had been employed by Thames Water for 34 years. He was summarily dismissed, following an investigation into an incident in which he had gone into a sewer to conduct an annual inspection without wearing breathing apparatus. This was in contravention of safety requirements involving a newly introduced ‘ safe system of work’ form used by Thames Water for complex activities not covered by the usual risk assessment. The form stated that breathing apparatus had to be used for annual inspections and this had been made clear to Mr Newbound in advance by his manager.

At his disciplinary hearing Mr Newbound acknowledged that he had sign the new safety at work form but admitted that he had not fully read it. He had not seen the form before, had not been trained on its use and had thought it was a method statement. He had been in a hurry to get out to do the work, had assumed that the breathing apparatus was available in case it was needed and had made the decision not to use it based on his experience. Mr Newbound was consequently dismissed.

Mr Newbound appealed the decision, acknowledging that he made an error of judgement for which he was sorry and stated that he wished to remain employed by Thames Water and offered to undertake refresher training. He asked Thames Water to have regard to his 34 years’ service. His appeal was rejected and he brought a claim for unfair dismissal.

The employee in charge of sewer entry, who allowed Mr Newbound to enter without breathing apparatus, was given a written warning.

Tribunal and EAT

The employment tribunal judge found that Mr Newbound had been unfairly dismissed, deciding that the decision was not within the band of reasonable responses open to the employer and highlighting the difference in treatment between Mr Newbound and his colleague. However the EAT reversed that decision on the basis that the employment judge had wrongly substituted his view of the seriousness of the disciplinary offence for that of the employer.

Court of appeal

The Court of Appeal has now reinstated the employment tribunal’s decision. The court regarded as crucial the evidence that showed that the safe system of work form was a comparatively recent document and the fact that Mr Newbound had not been specifically trained in its significance. It was clear that for many years Mr Newbound had exercised his discretion whether to use breathing apparatus and that Thames Water had been prepared to rely on his skill, knowledge and experience. Also no-one made clear to Mr Newbound when the new form was introduced that failure to wear the breathing apparatus in sewers in the future would be treated as gross misconduct.

In addition the Court of Appeal approved the tribunal’s finding that Mr Newbound's 34 years of service with a clean disciplinary record had not been given sufficient weight.

The Court of Appeal also agreed with the tribunal that the dismissal would in any event have been unfair because of the disparity of treatment between Mr Newbound and his colleague. Mr Newbound’s colleague was in overall charge and had allowed Mr Newbound to enter the sewer without breathing apparatus. He was only charged with misconduct, not gross misconduct, which avoided the possibility of his dismissal, and he had been given a warning while Mr Newbound had been dismissed. The judge had been entitled to find that this was not an appropriate case for disparity in treatment and that the dismissal was also unfair on this ground.

If you have any questions in relation to the points raised in this article or any other HR/ employment matter, please contact our HR/ employment law solicitor Claire Berry on 01480 442040 or email

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