Employers ‘Band of reasonable responses’
A recent Court of Appeal case is helpful for employers to have in the back of their minds when considering whether they are acting reasonably when dismissing an employee (Newbound v Thames Water Utilities Ltd) . Mr Newbound had been employed by Thames Water for more than 34 years. He was dismissed when he and his colleagues decided not to use breathing apparatus when it was previously agreed with his manager that he should do so. In addition, a new procedure had recently been introduced which stipulated breathing apparatus must be used. Mr Newbound had a brief discussion with his manager regarding the new system. His colleague – the ‘competent person in charge’ –received only a warning because he had shown remorse and was less experienced.
The Court of Appeal held that the dismissal was unfair. The Court considered the long-established tests for unfair dismissal, noting that while the “band of reasonable responses” has been “a stock phrase in employment law for over 30 years”, the band “is not infinitely wide”. The Court found that:
Mr Newbound had always had considerable discretion in how he carried out his work, including in relation to breathing apparatus;
- Mr Newbound had received insufficient training on the significance of the newly introduced procedures;
- The potential disciplinary consequences of failing to use the apparatus were not explained;
- Mr Andrews had also failed to comply with the procedures even though he was in charge of the health and safety aspects of the work but had been treated more leniently;
- In the past employees had been treated more leniently in similar situations.
Employers are usually given a wide scope on whether to dismiss when there has been a breach of health and safety, but this case illustrates that this discretion only goes so far. The decision highlights the need for new procedures to be accompanied by appropriate training.
