The Court of Appeal has once again emphasised that an Employment Tribunal should not substitute its own view of what it considers that an employer should have done in cases of misconduct, but should rather determine whether the decision of an employer to dismiss for misconduct was within what is known as the “band of reasonable responses”.
At one end of this band will be a very lenient employer and at the other will be a harsh employer. As long as an employer can show that the decision to dismiss fell within this band, dismissal is potentially fair.
In the case of Newbound v Thames Water Utilities Ltd, Mr Newbound was dismissed for gross misconduct after 34 years of previous unblemished service.
Mr Newbound was dismissed for failure to follow health and safety procedures which Thames Water Utilities Ltd said put himself and a colleague in unnecessary danger which could have resulted in serious injuries or fatalities.
At the Employment Tribunal, the Judge held that, in the circumstances, no reasonable employer would have dismissed Mr Newbound and that the decision to terminate his employment had been perverse.
This was overturned by the Employment Appeals Tribunal which substituted a finding that Mr Newbound’s dismissal for not wearing breathing apparatus within a sewer was fair. The Appeals Tribunal believed that the Employment Judge had failed to consider the gravity with which Thames Water viewed the misconduct and had substituted his views, rather than considering whether Thames Water had acted unreasonably.
Mr Newbound appealed.
The Court of Appeal restored the Employment Judge’s decision. The Judge had been entitled to reach a conclusion that no reasonable employer would have dismissed Mr Newbound in the circumstances.
The Employment Appeals Tribunal should not have interfered with this decision. The Court of Appeal disagreed with Thames Water that an Employment Tribunal should give a very wide margin on discretion to employers on health and safety.
There are no special rules about assessing the reasonableness of a dismissal where the alleged gross misconduct involves a breach of health and safety requirements.
The Court of Appeal believed that Thames Water was attempting to stretch the band of reasonable responses to an infinite width.
This case highlights that it is important for employers to consider the band of reasonable responses test when making a decision to dismiss and also highlights that any cases which are appealed do not resolve themselves quickly.
Despite the fact that Employment Tribunals were set up to provide speedy resolution of cases, this claim took nearly four years to resolve and would no doubt have incurred significant costs, legal expenses and, crucially, down time for the business whilst the claim went through the Employment Tribunal and appellate courts.
