Case of the week will be slightly different this week, most of the case law we cover is either in the Employment Tribunal (ET) or Employment Appeals Tribunal (EAT).

However, today’s case is from the next court up in the food chain, the Court of Appeal of England and Wales (EWCA).

The questions this week are:

Is dismissing an employee for ignoring safety precautions justified when the malpractice is commonplace throughout the company?

Should an employee’s length of service mitigate their conduct for one off incidents?

Can two employees commit the same misconduct and get different disciplinary sanctions?

Mr Newbound, the Claimant, had worked for Thames Water Utilities Ltd, the Respondent, as a valve co-ordinator. His job was to maintain all large valves that controlled the Respondent’s water assets.

The Claimant and another employee, Mr King, were scheduled to assess a large sewer valve. This would involve them being in a confined space and was considered dangerous work by the Respondent.

The Respondent ran through the safety procedures for entering the sewer and explained the need for external breathing apparatus as the air could be toxic. The Claimant signed a form to acknowledge the need for breathing apparatus but was not told about the repercussions of not following the procedures.

Upon arriving at the sewer the Claimant and his site manager ran various tests into the safety of the site and the gas detector readings showed the air was not as toxic as predicted. The Claimant, his site manager and Mr King, agreed that no breathing apparatus would be needed. They entered the sewer and took gas detectors to continuously monitor the air quality.

The Claimant’s senior manager then arrived on site and halted the work after noticing the site manager had not arranged for a safety winch to be on site. At this point the senior manager observed the Claimant and Mr King leaving the sewer without the breathing apparatus. The work resumed and the job was completed without further problems.

Due to the senior manager witnessing the Claimant not wearing any breathing apparatus the Respondent investigated the work carried out that day. Due to the serious breach in health and safety procedure the Respondent suspended the Claimant and commenced disciplinary action.

The Respondent only interviewed the site manager and not the Claimant about the incident. The Claimant was dismissed for gross misconduct whilst his site manager was only given a formal written warning. The Claimant appealed the decision citing a general lack of health and safety knowledge across the company as the reason for him not using breathing apparatus as his manager had allowed them to not use it as well.

The appeal was unsuccessful and the Claimant begun tribunal proceedings. The ET found that the Claimant had been unfairly dismissed as even though his conduct had been a serious breach of health and safety procedures the Claimant himself was unaware of the procedures and believed he would be able to rely on his vast experience to decide what action needed to be taken. It further highlighted the fact that the conduct was approved by the site manager who was not dismissed.

The Respondent appealed and the EAT ruled that the lack of knowledge for health and safety procedures should not mitigate the Claimants conduct. It also did not factor in any differential treatment the Claimant and his manager received, the Claimant’s length of service, nor the fact he was interviewed for his own disciplinary investigation.

The Claimant then appealed to the Court of Appeal, we are now through the looking glass here and onto the next level. The EWCA ruled that the original ET had made no error in law when it reached its verdict. It cited the length of service, disproportionate treatment of Claimant and manager, lack of health and safety knowledge and failure to conduct a full investigation as fair justification for the ET’s decision.

The EWCA then stated the EAT should not have allowed the appeal, its decision was cast aside and the ET judgment was restored.

Today’s lessons:

An employee should not be dismissed for a breach of procedure if the conduct is commonplace or not known to the general workforce.

When deciding to dismiss an employee for GM there are several mitigating factors that should be taken into account including length of service and conduct by other employees. If the conduct is similar but the outcome different the reason for this must be fully justified.

A further point would be that sometimes an EAT decision isn’t final. If the decision reached is a bad one then the courts will rectify this as they will not want it to become a precedent for future cases, particularly GM dismissals!

If you have work that involves working in confined spaces make sure that your employees are fully trained in a way that complies with the Confined Spaces Regulations. If you would like some e-learning for health and safety training please email us ( emma@pjhlaw.co.uk ).