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.
The decision is a warning to companies 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 newly introduced safety requirements by Thames Water.
The claim for unfair dismissal also focused on why Mr Newbound was dismissed, but not another employee – the manager in charge of sewer entry who allowed him to enter without breathing apparatus, but was given only a written warning, which Thames Water said was due to the difference in experience. They claimed that the manager was fairly inexperienced, compared with Mr Newbound who had worked for Thames Water for 34 years.
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.
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. And, of course, that applies to any change in practices or procedures, not just health and safety.
It’s also a reminder that Employment Tribunals are generally not keen to treat managers differently, and let them off the hook when others are being disciplined. Doing this without very good reason is likely to prejudice legal fairness, as will failing to take previous performance by an employee into account.