Kicking up a stink: update on health and safety dismissals

Earlier this month, the Court of Appeal found that an employee was unfairly dismissed for gross misconduct despite the reason for his dismissal being a breach of company health and safety rules.

The case concerned an employee, Mr Newbound, who worked for Thames Water for 34 years.  Mr Newbound was dismissed after he entered a Class C sewer without breathing apparatus.  His manager had allowed him to do so having checked the gas readings and concluding that there was sufficient oxygen in the sewer.  However, Thames Water had recently brought in a risk assessment and method statement requiring breathing equipment to be worn in those conditions.  The manager received a final written warning rather than dismissal, which Thames Water said was because he was relatively inexperienced compared to Mr Newbound, had felt pressured by Mr Newbound to finish the job quickly and had shown remorse, whilst Mr Newbound had not. 

The case went up to the Court of Appeal who agreed with the initial tribunal judge that the dismissal was unfair.  This was based on the fact that: 

  • The risk assessment and method statement had only been introduced fairly recently;
  • Mr Newbound had not been made aware of the importance of the new assessment or had any training on it;
  • Mr Newbound had previously been allowed to use his own discretion when deciding whether to use breathing equipment;
  • Previous instances where employees had not used breathing equipment in similar conditions had not resulted in disciplinary action.  

Mr Newbound was, however, held to have contributed to his dismissal by his conduct and a 40% deduction was applied to his compensation.   

Key points for employers 

This case highlights the difficulties employers face in trying to ensure compliance with health and safety procedures and may seem to be a harsh decision to employers.  However, there are some useful lessons for employers from the case in that: 

  • Any new procedures and risk assessments relating to health and safety duties and the importance of compliance should be properly communicated to employees;
  • Appropriate training should be given to relevant employees;
  • There should be a consistent approach to breach of health and safety compliance unless there is good reason to treat employees differently in the circumstances.  

If you have any queries regarding this or any other legal issue please contact us on 0330 123 1229.