Newbound v Thames Water Utilities Ltd

Under the Employment Rights Act 1996, an employment tribunal must objectively assess whether dismissal was a reasonable response to the misconduct, having regard to equity and the substantial merits of the case. The range of reasonable responses is not infinitely wide.

Health and safety misconduct attracts no special rule giving employers an unusually broad margin. Lack of training on a new safety procedure, previous condonation of similar conduct, length of service, a clean disciplinary record and disparity in treatment may all be relevant. An employment tribunal may find dismissal unfair without substituting its own view for that of the employer.

Robert Newbound was summarily dismissed by Thames Water after entering a Class C sewer twice without breathing apparatus, contrary to the stated safe system of work. The Employment Tribunal found the dismissal unfair but assessed 40% contributory conduct and awarded compensation.

The Employment Appeal Tribunal allowed Thames Water’s appeal and dismissed the claim in UKEAT/0011/13/SM. Mr Newbound appealed to the Court of Appeal. The central questions were whether the Employment Tribunal had substituted its own view of the misconduct, and whether it was entitled to find the dismissal unfair because of the claimant’s circumstances and his different treatment from the employee in charge.

1. Appeal allowed. The Court of Appeal set aside the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s finding that the dismissal was unfair, subject to 40% contributory conduct.
2. Under section 98(4) of the Employment Rights Act 1996, the tribunal must decide whether the employer acted reasonably in treating the conduct as sufficient reason for dismissal, in accordance with equity and the substantial merits of the case. The band of reasonable responses is not infinitely wide. An employment tribunal may conclude that dismissal fell outside that band without impermissibly substituting its own view. This was consistent with Bowater v NW London Hospitals NHS Trust [2011] IRLR 331.
3. There is no special rule for misconduct involving health and safety. The Employment Tribunal was entitled to attach significance to the claimant’s lack of training on the newly introduced SHE4 procedure, particularly in conjunction with evidence that similar decisions not to use breathing apparatus had previously been condoned. Length of service and a clean disciplinary record were also relevant considerations, not matters exclusively for the employer’s assessment.
4. The tribunal was entitled to find unjustified disparity. Disparity arguments may concern previous similar conduct treated less seriously or different treatment of employees involved in the same incident. The employer could reasonably take account of differing roles, experience and attitude, but the Employment Tribunal was entitled to conclude that the treatment of the claimant and the CP2 in charge could not fairly be distinguished on the facts.
5. An appeal from an employment tribunal lies only on a question of law. The EAT and the Court of Appeal must not substitute their own view of the reasonable employer’s response for that of the tribunal. On an appeal from the EAT, the question is whether the employment tribunal erred in law, not whether the EAT’s decision was correct. The 40% assessment of contributory conduct was likewise left undisturbed.
6. The Chancellor added separate obiter observations concerning apparent bias. Where material relied on in an appeal may give rise to a connection between a panel member and an interested organisation, the issue should be identified before the hearing. The fair-minded and informed observer test and the precautionary principle may require recusal, although the Court expressed no concluded view because apparent bias was not a ground of appeal.

1. Court of Appeal (Civil Division): allowed Mr Newbound’s appeal, set aside the EAT’s order and restored the Employment Tribunal’s decision.
2. Employment Appeal Tribunal: allowed Thames Water’s appeal and dismissed the unfair dismissal claim in UKEAT/0011/13/SM.
3. Employment Tribunal: found the dismissal unfair, assessed 40% contributory conduct and awarded compensation of £54,197.84 subject to statutory recoupment.