Robert Newbound v Thames Water Utilities Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lady Justice King,Sir Terence Etherton |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWCA Civ 677 |
| Date | 03 July 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2014/1408 |
[2015] EWCA Civ 677
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE SLADE, MRS C BAELZ, MS G MILLS
UKEAT/0011/13/SM
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT ( Sir Terence Etherton)
Lord Justice Bean
Lady Justice King
Case No: A2/2014/1408
David Mitchell (instructed by Waring & Co, New Barnet) for the Appellant (Claimant)
Philip Jones (instructed by Ashfords LLP, Taunton) for the Respondents
Hearing date: 25 June 2015
This appeal raises once again the familiar questions of when an employment tribunal (ET) is justified in finding that an employer's decision to dismiss on the grounds of conduct was unfair; and, if the ET does so find, in what circumstances that finding can be successfully challenged on appeal.
The facts
On 15 September 2011 Mr Robert Newbound was dismissed from his employment with Thames Water Utilities Ltd after 34 years' continuous service. He presented a claim for unfair dismissal to the employment tribunal. After a two day hearing at Watford before Employment Judge Bedeau (sitting alone) the Tribunal found, in a reserved decision promulgated on 17 September 2012, that he had been unfairly dismissed but had contributed to the dismissal to the extent of 40%. At a subsequent remedies hearing the respondent was ordered to pay £54,197.84 as compensation subject to the statutory recoupment provisions.
By notice of appeal dated 25 October 2012 the employers appealed to the Employment Appeal Tribunal (EAT). The appeal was not heard until 18 October 2013. In a reserved judgment handed down nearly six months later, on 9 April 2014, the EAT allowed the appeal and dismissed the claim. With permission granted by Elias LJ Mr Newbound appeals against that decision.
A penstock is a large valve, several tonnes in weight, operated by sliding up and down to open and close a sewer. The claimant's job title with effect from 1 st April 2010 was penstock co-ordinator. It involved the maintenance of the respondent's water assets on a regular preventative programme. Penstocks and other mechanical devices within sewers which regulate the flow of water require regular inspection and maintenance. The claimant was responsible for ensuring that all annual conditioning inspections of penstocks were completed correctly and on time. He had to report all defects, some of which enabled the respondents to obtain capital funding to spend on refurbishments.
The claimant reported to Mr David Dennis, inspection team manager, who in turn reported to Mr Mike Gunn, field service manager — trunk sewers. Mr Gunn in turn reported to Mr Robert Nason, regional performance manager – large assets group. The total staff complement of the respondents is about 5,000.
The flap and penstock of the sewer at Albert Road, East London was due to have an annual inspection and report carried out in the summer of 2011. On or around 20 June 2011, Mr Dennis had a discussion with the claimant about the proposed inspection. They discussed the equipment needed, and whether the respondent's contractor, Mr Alan King, a mechanical fitter, would be able to use the respondent's trolley set. A trolley set is a full breathing apparatus with an umbilical air line attached to the surface above the sewer. Air is fed from a supply outside to the breathing apparatus. The trolley set is used for difficult and/or dangerous tasks where manoeuvrability is minimal in a confined space. It was agreed between Mr Dennis and the claimant that the inspection would take place on 19 July 2010 as a trolley set would be available on that day.
On 19 July 2011, Mr Dennis met the claimant and Mr King and went through the safety requirements, in particular the safe system of work form referred to as the SHE4. The SHE4 form is a formal method statement detailing a safe system of work and is used by the respondent for more complex activities which are not covered by the usual risk assessment. As this was a new document, Mr Dennis explained the reasons why it was necessary and the fact that the form was part of the respondent's new health and safety management system. He read a brief description of the work and went through the tasks involved. He made it clear to both men that they were required to use a breathing apparatus. The SHE4 form stated in the description of work that it was a Class C sewer and the inspection must be undertaken in full breathing apparatus. The judge was satisfied, having heard the evidence, that both the claimant and Mr King understood that they were required to wear breathing apparatus on entry into the sewer and that they signed the relevant paperwork. The judge also found that Mr Dennis read out what was written in the second on the first page of the SHE4 form, namely:
"An annual inspection is required on two Trunk Sewer assets in the Albert Road Connecting Sewer Chamber. The sewer is C Class and must be completed in full BA in accordance with the Thames Water Confined Space Code of Practice."
Both the claimant and Mr King were asked by Mr Dennis whether they wanted to keep a copy of the signed SHE4 but declined and left, making their way to the Albert Road sewer. The SHE4 was issued by Mr Dennis as the manager devising the safe system for the task to be undertaken. The judge found that neither the claimant nor Mr King had been trained on this new health and safety procedure involving the use of the SHE4 form.
In addition to the SHE4 the work also required a "C permit" authorising entry into a confined space. This was issued by Mr Robert Smith, OPS field specialist, on 19 July 2011. It was countersigned by Mr Shaun Andrews, as the "competent person" in charge (referred to as the "CP2").
When the claimant and Mr King arrived on site all members of the safety team were already in place for their entry into the sewer. In addition, there was a traffic management team regulating the movement of traffic around the sewer area. A gas monitor had been sent down the chamber and was monitoring the atmosphere. Mr Gunn and Mr Nason were also present as well as there being a breathing apparatus trolley set team on site. The claimant and Mr King then put on their personal protective equipment, and talked over the entry into the sewer to Mr Andrews, being the CP2 in charge of health, safety and entry. They discussed whether it was safe to enter the chamber with or without the breathing apparatus and whether or not false air ventilation was required. Mr Andrews checked the readings and the gas monitor three times and found that it was safe to enter as all the readings were within safe parameters. There was a good level of oxygen and no presence of methane or hydrogen sulphite. The claimant and Mr King then entered the chamber and had in place an extra gas monitor to continually test air quality throughout their inspection. They wore respiratory dust masks. They were required to travel down approximately 3 metres into the sewer. The job to be done was directly below the entry point so that they could see the street level entry/exit hole. The chamber was approximately 2.5 metres long and 3 metres wide. During their inspection Mr Dennis, together with Mr Mitchell Fraser, survey inspector, arrived on site.
After being in the chamber for approximately five minutes, the claimant and Mr King received a call from the safety team for them to vacate the chamber. The claimant, Mr King and the team working above ground, were briefed by Mr Nason about rescue arrangements, focusing on the need for alternative methods for lifting an unconscious casualty from the sewer. This led to discussion of using a Didsbury hoist or winch. As the claimant emerged from the sewer, Mr Gunn, who was in the company of Mr Nason, noticed that neither the claimant nor Mr King was wearing breathing apparatus.
The absence of a Didsbury winch or hoist on site meant that the work inside the chamber could not continue for health and safety reasons. The winch was important as it was required to be used in the event of an emergency to lift someone from inside the chamber who might be injured. It was Mr Andrews's responsibility to arrange for a winch to be present but he had failed to ensure that one was available. He left the site to collect one. In the meantime vehicles were moved to a side street to allow traffic to flow.
Mr Andrews returned within the hour with the Didsbury winch. Traffic management was replaced, and the manhole lifted and vented by the safety team. Gas checks were again carried out by the safety team and the atmosphere was found to be within safe parameters. By this time Mr Nason and Mr Gunn had left the site. As the atmosphere within the chamber was within safe limits, Mr Andrews again allowed the claimant and Mr King to enter the chamber without wearing breathing apparatus or a false air ventilator; each had an extra gas detector and wore a dust mask. They tested the eyebolt in the ceiling and replaced and tested the eyebolt on the flap. They then lifted the flap to a horizontal position attaching a secure chain. The process took approximately half an hour. During that time the gas detectors were frequently checking for any fluctuations in the atmosphere.
When the work was completed, the claimant and Mr King came out of the sewer chamber. Traffic management on Albert Road was then restored and the site cleared. The claimant telephoned Mr Dennis to report that the flap had been raised and secured.
The employers' investigation
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