Thames Water Utilities Ltd v Newbound

An Employment Tribunal must assess whether dismissal falls within the range of reasonable responses open to a reasonable employer. It must not substitute its own assessment of an employee’s culpability, the significance of mitigation, or the appropriate sanction.

In a serious health-and-safety case, an experienced employee’s knowing breach of a clear instruction may reasonably justify summary dismissal. A difference in sanctions may also be reasonable where one employee promptly accepts wrongdoing and is less experienced, while another does not accept responsibility until after dismissal.

The employee, a long-serving and experienced operative, was dismissed for gross misconduct after entering a Class C sewer twice without breathing apparatus, despite an instruction and written safe system of work requiring it.

The Employment Judge held the dismissal unfair, principally because of mitigation and because another employee, who was the competent person in charge at the site, received a warning. The Judge reduced the awards by 40% for contributory fault and made pension-loss awards.

The employer appealed the unfair-dismissal finding and, alternatively, the contributory-fault and pension awards. The employee cross-appealed against any deduction for contributory fault. The central issue was whether the Employment Judge had applied the range-of-reasonable-responses test rather than substituted his own view.

1. Appeal allowed. The finding of unfair dismissal was set aside and a finding that the employee had been fairly dismissed was substituted.

2. The Employment Judge had correctly directed himself in principle, but then assessed the case by his own view of the employee’s blameworthiness and of the weight to be given to mitigation. The proper question was whether dismissal lay within the range of reasonable responses open to a reasonable employer. The Judge also relied on matters not properly established as having been known to the employer when it made its decision.

3. The employer could reasonably treat as grave the employee’s deliberate entry into a hazardous Class C sewer without breathing apparatus. He knew of the instruction and the risks. The acquiescence of a less experienced competent person at the site did not remove his responsibility for his own safety and that of the contractor working with him.

4. The alternative disparity finding was also unsustainable. The other employee had promptly acknowledged his mistake, was relatively inexperienced, and had explained that he had been reluctant to challenge more experienced staff. Those were matters which could reasonably justify more lenient treatment. The employee, by contrast, did not acknowledge wrongdoing until after dismissal.

5. Applying Dobie, this was the rare case in which no properly directed Employment Judge could find the dismissal unfair. The contributory-fault and pension issues were therefore unnecessary to the outcome. The EAT nevertheless held that, had liability remained in issue, contributory fault would have been increased from 40% to 50%; the 20% pension withdrawal deduction and the separate award for lost pension lump sum would have been upheld.

• Employment Appeal Tribunal: appeal allowed; the Employment Judge’s finding of unfair dismissal was set aside and replaced with a finding of fair dismissal.
• Employment Tribunal: liability judgment sent on 17 September 2012 found the dismissal unfair and reduced awards by 40% for contributory fault. Remedies judgment sent on 20 December 2012 made pension-loss awards.