The claimant was dismissed in 2011 from his employment with Thames Water Utilities Ltd after 34 years' continuous service. He won his UD case but the tribunal found there to have been a 40% contributory fault and reduced the award accordingly. The employer won the appeal to the EAT. The claimant subsequently appealed to the Court of Appeal.
The claimant's job, in part, was to report faults in a large (several tonnes) valve in the sewerage system. He was dismissed for safety issues involving the failure to wear breathing apparatus. A Mr Andrews was not, the employer arguing that Mr Newbound was much more experienced. What appears to have been ignored by the employer was that it was actually Mr Andrews who was in overall charge of operations that day and had permitted Mr Newbound and another employee to enter the sewer without breathing apparatus.
The original employment judge had concluded that no reasonable employer would have dismissed the claimant in the circumstances. The Court of Appeal could see no grounds for overturning that.
The Court also agreed with the alternative conclusion of the employment judge that the dismissal was unfair based on the disparate treatment of the claimant and Mr Andrews, concluding:
"His findings of fact included the following: (a) Mr Andrews was in overall charge on the day at the Albert Road sewer; (b) he allowed the claimant and Mr King to enter the sewer twice without a Didsbury winch being on site and without breathing apparatus; (c) Mr Andrews was only charged with misconduct, not gross misconduct, which avoided the possibility of his dismissal; (d) Mr Andrews was interviewed prior to the disciplinary hearings while the claimant was not; (e) Mr Andrews was given a written warning while the claimant was dismissed. On those facts the judge was entitled to find that this was not an appropriate case for disparity in treatment and that the dismissal was also unfair on this ground. For my part I have rarely seen such an obvious case of unjustified disparity."
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