Dismissal kicks up a stink at the sewage works

A worker who was dismissed after failing to follow new health and safety guidelines has won his claim for unfair dismissal in the Court of Appeal.  

And the decision is a warning to companies that it is not enough to issue new procedures and risk assessment requirements, without making sure that employees are fully aware of the changes and are properly trained.

The case of Newbound v Thames Water Utilities involved a long-serving and experienced sewer worker, who was summarily dismissed after an incident in which he entered a sewer to conduct an annual inspection without wearing breathing apparatus.  This contravened newly introduced safety requirements by Thames Water.

The claim for unfair dismissal also focussed on why Mr Newbound was dismissed, but not another employee, the manager in charge of sewer entry who allowed him to enter without breathing apparatus, but was given only a written warning, which Thames Water said was due to the difference in experience.  They claimed that the manager was fairly inexperienced, compared with Mr Newbound who had worked for Thames Water for 34 years.

In reaching its judgement, the Court of Appeal highlighted that the new risk assessment and method statement had been introduced fairly recently; and that no specific action had been taken by Thames Water to train Mr Newbound or ensure that he was aware of the importance of the new assessment.

Also, he had been allowed to use his own discretion in the past about whether to use breathing apparatus; and had not been subject to any disciplinary action as a result of any such previous decision.  As a result, the Court upheld the original ruling of the first Employment Tribunal hearing, that the reaction of Thames Water was not reasonable and the difference in treatment between him and the manager was unfair.

The Court of Appeal also pointed to Mr Newbound’s long service and clean disciplinary record, saying this had not been given sufficient weight by the employer.

Said Maria Koureas-Jones : “This case shows that simply having new processes in place is not enough for companies to discharge their health and safety duties.  There must be proper communication with employees and the significance of changes made clear. If failure to follow a new procedure is going to result in disciplinary action, employers have got to make sure they spell that out.  And, of course, that applies to any change in practices or procedures, not just health and safety.”

She added:  “It’s also a reminder that Employment Tribunals are generally not keen to treat managers differently, and let them off the hook when others are being disciplined.  Doing this without very good reason is likely to prejudice legal fairness, as will failing to take previous performance by an employee into account.”

ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.


Thinking of excluding family members? Take Advice!

The recent case of Illot v Mitson [2015] EWCA Civ 797 shows just how willing courts are to overturn a testator’s wishes in their Wills.

Heather Illot’s mother chose not to include her in her Will because she had eloped at 17 to marry her boyfriend instead choosing to leave her entire estate to animal charities.

On her mother’s death in 2004 Illot challenged the Will under the Inheritance (Provision For Family and Dependants) Act 1975 on the basis that reasonable provision for her had not been made in the Will.  She was initially awarded £50,000 but challenged this.  This challenge was initially rejected but has now been successful in the Court of Appeal where she has been awarded £164,000.

Many commentators have suggested that this case sets a worrying precedent however there are several important factors which the judges appear to have taken into account when making their decision.

Firstly the deceased’s estate comprised of assets she received from her late husband, Mrs Illot’s father who died before Mrs Illot was even born.  This is important in that had he lived he may well have wanted to provide for his daughter and his main asset, the family home, appears to have been paid for by him solely.

Additionally Mrs Illot’s mother appeared to have no connection to the charities which she intended to benefit which would suggest that had she had a connection the judges may not have reached the same decision.

On top of this Mrs Illot’s mother rejected attempts at reconciliation made by her daughter.

It is unclear at the moment whether the charities may challenge the decision.

If anything this case highlights the importance of seeking legal advice when making Wills and providing clear instructions as to whom should benefit from your Will and why.

 

 


Hot dates and hot data

Reports that an extramarital dating site has been hacked recently may have given its customers more than the usual worry that accompanies news of cyber-crime. 

Following on the heels of many other high profile hacking cases, such as Sony in the United States, organisations are being forced to look ever more carefully at their information risk management regime, to make sure they value information as an asset, and assess their processes with the same rigour as legal, regulatory, financial or operational risk.

In the case of the dating site Ashley Madison, which promotes itself with the strapline ‘Life is short, have an affair’, it’s been reported that more than 2,500 customer records have been released to the public by the hackers, who claim to have stolen the total database of the site, which is said to contain more than 33 million members in 46 countries.  The company has faced a barrage of calls from customers, concerned that their personal details and credit card information have been compromised.

And whilst the true picture for the internet daters continues to enfold, Ashley Madison’s problems are a reflection of a fast-growing area of crime, as more and more criminals exploit the speed, convenience and anonymity of the internet. The Metropolitan Police has recently announced it is boosting the size of its team to tackle cyber-crime and the Government has issued guidance for companies, in a bid to stem the range of criminal activities that know no borders, either physical or virtual.

For companies, cyber-criminals may attack the functioning of computer hardware and software, or try to commit financial crimes, such as online fraud or by penetrating online financial services, or go ‘phishing’ for confidential information.  For company directors, the advice is to ensure the topic is at the top of the boardroom agenda.

 As well as having to meet the requirements of the Data Protection Act and the Communications Act in the UK, also up and coming is the draft EU Data Protection Regulation and the proposed EU Cybersecurity Directive.   There are requirements under the Companies Act 2006 also, which place a duty on directors to keep themselves informed on relevant issues.  They may be held to be negligent if they do not take appropriate professional or expert advice to tackle any identified threats.

The key components for business are to undertake a risk analysis, develop a cyber-security programme, set in place the right policies and take appropriate technological measures.

“Every business must ask itself what value there is in information they hold electronically, for example, it may be intellectual property, customer information or client funds.  Then they need to consider where the risk lies; as well as outside criminals, the risk could come from current or previous employees or competitors,” explained Brendan O’Brien   Director at Breeze & Wyles Solicitors Limited.

“The response to that review should include a clear cyber-security strategy, with policies in place and staff well informed, backed up by a regular review and updating of technological practices.”

IT system reviews would range from how networks are monitored for attack and what firewalls and malware detection software is in place, through to how internal and external users are controlled and how access may be segregated or restricted.

“It can come down to the most simple things, such as who holds the passwords and making sure staff don’t open spam mail,” added Mr O’Brien.  “Thorough education of staff, with regular updates, is essential.  As well as demonstrating that the company takes the matter seriously, staff are often in the front line, and if they are well informed of the risks, and encouraged to take responsibility, they can be more effective gatekeepers.”

ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.