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Excellent work – you’re still sacked

15 Sep 2015
by Sharma Solicitors

Can an employer sack an employee with an excellent work record because of one instance of gross misconduct?

Thames Water tried to do it in their terms but employment judges told them that they were wrong.

Thames Water sacked a senior employee after 34 years of unblemished service for one indiscretion they saw as gross misconduct.

Robert Newbold, an experienced penstock co-ordinator, was dismissed for breaching health and safety rules.

He and a colleague, Mike King, a mechanical fitter, entered a sewer in east London without wearing the proper protective equipment.

After a review, Thames Water claimed they had put their lives at risk and fired both of them.

At the Employment Tribunal hearing, the judge found that both had contributed to their dismissal – called ‘contributory fault’.

Yet, he said the penalty of dismissal was outside of the range of ‘reasonable responses’.

The contributory fault led to a reduction of the compensation awarded. Thames were ordered to pay £54,197.84 to Mr Newbound.

Thames Water successfully appealed and the case eventually ended up at the Court of Appeal – Newbound v Thames Water Utilities Ltd., Case No: A2/2014/1408.

The Court of Appeal backed the original Employment Tribunal judgment in September 2011.

The judgment was essentially about measuring Thames Water’s decision to sack an employee against a ‘band of reasonable responses’.

At one end of band was a strict employer who would sack an employee for misconduct.  At the other, a lenient employer offering another chance. If the employer’s penalty of dismissal fell anywhere within the range, the dismissal would be fair.

In the Newbound case, a single act of misconduct, in an entire unblemished career, fell outside the range of reasonable responses.

Making the right judgment

The lesson for employers is even if your penalty is at either end of the band of reasonable responses the dismissal will be fair. The challenge for employers is making the right judgment. Is dismissal within the range or not?

    Sharma Solicitors is Regulated by Solicitors Regulation Authority (SRA Number: 403199)