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Employment Law

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Veale Wasborough Vizards , 20 JUL 2015

Unfair dismissal - can the band of reasonable responses be extended?

Unfair dismissal - can the band of reasonable responses be extended?
Joanne Oliver
Associate, Veale Wasbrough Vizards

In a recent case, the Court of Appeal (CA) has considered whether the band of reasonable responses could be expanded depending on the seriousness of the act of misconduct to the particular employer.

In Newbound v Thames Water Utilities Ltd, Mr Newbound had worked for Thames Water Utilities Ltd (Thames Water) for 34 years and was responsible for inspecting equipment in sewers. During one inspection, he and a colleague entered the sewer without any breathing apparatus contrary to Thames Water's new health and safety policy. Following an investigation, Mr Newbound was summarily dismissed for gross misconduct but his supervisor, who had not insisted that Mr Newbound wear breathing apparatus, received a written warning. Mr Newbound brought a claim of unfair dismissal.

The Employment Tribunal (ET) found that the dismissal was unfair given Mr Newbound's length of service, clean disciplinary record, the fact that his colleague was in charge of this particular inspection and that the particular requirements to breathing apparatus were new. The ET also highlighted that Mr Newbound had not been informed that failure to wear breathing apparatus would lead to disciplinary action and possibly, dismissal. On this basis, the ET held that the decision fell outside the band of reasonable responses. Mr Newbound had also been treated inconsistently with his colleague who received a lesser sanction.

In a successful appeal by Thames Water, the Employment Appeal Tribunal (EAT) held that the dismissal had been fair. The ET judge had failed to consider the seriousness of the matter, in terms of the health and safety implications, for the company. Given this, Thames Water was able to expand the band of reasonable responses to include dismissal for this act of misconduct. Mr Newbound appealed.

The CA, in allowing appeal, held that the ET had been entitled to conclude that no reasonable employer would have dismissed Mr Newbound in the circumstances. The CA dismissed the submission by Thames Water that a very wide margin should be given to employers in terms of what constituted a reasonable response to breaches of health and safety procedures. Instead, the CA held that there was no special rule about assessing the reasonableness of a dismissal in a breach of health and safety requirements and criticised the EAT for seeking 'to stretch the band of reasonable responses to an infinite width'.

Best practice

This case is a useful reminder to employers that when taking a decision to dismiss an employee it must fall within the range of responses of a reasonable employer in the same circumstances. The case also shows the importance of informing employees when a failure to follow a policy or procedure will lead to disciplinary action, especially when it could lead to dismissal. Employers should ensure that the implement thorough and regular training on policies and clear guidance in this regard.

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