Kelsall v Severn Trent Water Limited 
The Nottingham Employment Tribunal delivered judgment this week in a case that demonstrates the importance of training employees thoroughly in hazardous activities in the workplace.
Mr Kelsall was a technical operator involved in the dangerous task of disconnecting and changing drums of sulfur dioxide (SO2), an extremely hazardous gas that proves fatal if inhaled. He was dismissed for a first offence after 25 years service (and with a clean disciplinary and safety record) when an anonymous but heavily edited DVD, filmed by a disgruntled colleague, had showed him apparently not wearing breathing apparatus during certain parts of a drum change over. A fellow technical operator received a final written warning.
In a judgment that was highly critical of Severn Trent Water, Employment Judge Milgate concluded that “there had been comprehensive failures both in relation to the substantive decision to dismiss and the procedure by which that decision had been reached”.
Amongst other things, the following faults were found with Severn Trent’s disciplinary investigation:
– There was a real danger the DVD had been malicious and had been edited to do maximum damage. Yet this risk was ignored;
– There was no investigation into a central part of Mr Kelsall’s defence, namely that the procedure he had adopted during the drum change and when to wear breathing apparatus was that routinely followed by other operators;
– The Respondent had provided no training on this procedure for 20 years, despite the fact it was an extremely hazardous process and the Respondent took no account of the fact that the lack of training might have affected the Claimant’s culpability;
– The Claimant’s performance on the drum change process had never been monitored or assessed by management against the formal procedure he was meant to have ignored.
Moreover, the Employment Judge concluded that the sanction of dismissal “fell well outside the band of reasonable responses and was therefore unfair”. Firstly, the Employment Judge applied the well-known guidance of the EAT in W Brooks & Son v Skinner  IRLR 379 and concluded that because of a lack of training and guidance within the disciplinary code, the Claimant “had no reason to think he would be sacked as a result of his behaviour”.
Secondly, the judge reviewed the line of authorities dealing with inconsistent treatment, including Hadjioannou v Coral Casinos Ltd  IRLR 352, and concluded that this “was one of those rare cases where the facts disclosed no significant difference between [Mr Kelsall and his colleague]”, who was treated more leniently despite having committed the same offence and in relation to a safety procedure which had been drafted in terms that implied joint responsibility. This failure to act consistently also warranted a 10% uplift in compensation due to a failure to comply with paragraph 4 of the ACAS Code of Practice. Finally, the Judge concluded that Mr Kelsall’s “long, umblemished and accident free record was either ignored or held against him…no reasonable employer would have acted in this way”.
Mr Kelsall thus succeeded with his unfair dismissal claim, but with a 30% reduction to compensation to account for some degree of contributory fault on his part. He also won his breach of contract claim on the basis that, objectively speaking, he had not been guilty of gross misconduct. A remedy hearing will be set down to consider the amount of Mr Kelsall’s compensation.
A full copy of the judgment can be accessed here.
Tom Kirk represented Mr Kelsall and was instructed by Jeremy Parkinson and Lucy Evans at Lyons Davidson Solicitors.