Dismissal kicks up a stink at the sewage works

A worker who was dismissed after failing to follow new health and safety guidelines has won his claim for unfair dismissal in the Court of Appeal. Emma Wyatt, Employment Law Solicitor, reviews the case and warns businesses that it is not enough to issue new procedures and risk assessment requirements, without making sure that employees are fully aware of the changes and are properly trained.

The case of Newbound v Thames Water Utilities involved a long-serving and experienced sewer worker, who was summarily dismissed after an incident in which he entered a sewer to conduct an annual inspection without wearing breathing apparatus. This contravened safety requirements newly introduced by Thames Water.

While Mr Newbound was dismissed, the manager in charge of sewer entry who allowed him to enter without breathing apparatus was not, and was only given a written warning. This also formed a part of Mr Newbound’s claim for unfair dismissal, and Thames Water stated it was due to the difference in experience as to the different treatment. They claimed that the manager was fairly inexperienced, compared with Mr Newbound who had worked for Thames Water for 34 years and so should have been aware of the hazards.

In reaching its judgement, the Court of Appeal highlighted that the new risk assessment and method statement had been introduced fairly recently; and that no specific action had been taken by Thames Water to train Mr Newbound or ensure that he was aware of the importance of the new assessment.

Also, he had been allowed to use his own discretion in the past about whether to use breathing apparatus; and had not been subject to any disciplinary action as a result of any such previous decision. As a result, the Court upheld the original ruling of the first Employment Tribunal hearing, that the reaction of Thames Water was not reasonable and the difference in treatment between him and the manager was unfair.

The Court of Appeal also pointed to Mr Newbound’s long service and clean disciplinary record, saying this had not been given sufficient weight by the employer, and instead had worked in some part against him.

This case shows that simply having new processes in place is not enough for companies to discharge their health and safety duties. There must be proper communication with employees and the significance of changes made clear. If failure to follow a new procedure is going to result in disciplinary action, employers have got to make sure they spell that out in their staff handbook policies or employment contracts. And, of course, that applies to any change in practices or procedures, not just health and safety.

It is also a reminder that Employment Tribunals are generally not keen on employers treating managers differently to other staff in a disciplinary process.  Doing this without very good reason is likely to prejudice legal fairness, as will failing to take previous performance by an employee into account.

If you would like advice on updating your policies in your handbook, you need assistance with training your managers and employees on the new policies, or maybe you’re an employee who feels you have been unfairly dismissed, you can contact Emma or the Employment Team on 02380 717717 or visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.