The recent decision of Newbound v Thames Water  has shed light on how far an employer must go to introduce a new policy to their workforce.
The case itself concerned an employee, Mr Newbound, who had worked at Thames Water for 34 years. Mr Newbound was instructed by his manager, Mr Andrews, to enter into a Class C sewer. Mr Newbound was dismissed for gross misconduct after he entered without the appropriate breathing equipment, as stiplulated by Thames Water’s new health and safety policy (‘the Policy’). Mr Andrews had allowed this after having checked the sewer gas reading and having deemed there to be a sufficient level of oxygen present. Mr Andrews was issued with a final written warning as he had less experience than Mr Newbound and had shown more remorse for his conduct.
At first instance, the Employment Tribunal (ET) found in Mr Newbound’s favour, holding that he had been unfairly dismissed by Thames Water.
This decision was rejected by the Employment Appeal Tribunal (EAT). It held that the ET’s decision was based on its own view of culpability rather than whether the employer’s actions were within the band of reasonable responses open to it.
Mr Newbound appealed to the Court of Appeal arguing that the ET had made no error of law at first instance. The Court of Appeal noted the following findings:
- The new Policy had only been introduced recently;
- Mr Newbound had not been made aware of the significance of the new Policy nor had he received training on it;
- Earlier disciplinary decisions of this kind had not resulted in dismissal; and
- Prior to the issue of the Policy, Mr Newbound was able to use his discretion when deciding whether to wear breathing apparatus.
The Court of Appeal upheld the decision of the ET who found that:
- No reasonable employer would have dismissed Mr Newbound;
- The difference in treatment bewteen him and Mr Andrews was unfair; however
- 40% compensation should be deducted from Mr Newbound, due to contributory fault.
Whilst Thames Water appear to have come off worse in this case, when simply trying to improve standards, it seems that the tribunal system is reluctant to enforce policies without an appropriate and documented introductory launch to staff. It also appears that managers will not be let off the hook, due to lack of experience or indifference.
If you are considering the launch of a new policy or procedure make sure its existence is communicated effectively to all staff and that they understand their obligations going forward.