Archive for September, 2015

Health and safety unfair dismissal: reasonableness: Court of Appeal decision



Case  Newbound v Thames Water Utilities Ltd [2015] IRLR 734, CA

Statute reference   Employment Rights Act 1996, s.98(4)

Facts N was employed by T to maintain mechanical devices in sewers. He was instructed to use breathing apparatus. He entered the sewer wearing only a respiratory dust mask and was removed by a safety team on the basis that the work could not continue for health and safety reasons. A disciplinary investigation found that N was a senior employee and should have been fully aware of the high risk nature of the operation and the additional safety precautions required. N was dismissed for gross misconduct for seriously infringing health and safety rules. He complained of unfair dismissal. The ET found in his favour on the basis that no reasonable employer would have dismissed him in the circumstances. The employer appealed to the EAT, relying in part on a letter from Unison to N stating that his unfair dismissal claim had no reasonable prospect of success. The EAT upheld the appeal. N appealed to the Court of Appeal.

Decision      1. The appeal was allowed.

  1. An ET was entitled to find that a dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer.
  2. The practice of entering sewers without breathing apparatus had been condoned for many years.
  3. It had not been made clear to N that failing to wear breathing apparatus would justify dismissal.
  4. Length of service was not forbidden territory for the ET.
  5. N had been treated differently from a colleague.
  6. There was a real possibility of apparent bias: a lay member of the EAT was the national secretary of Unison.


hydrogen explosion in Widnes factory: health and safety prosecution

Hydrogen explosion: £80,000 fine

Health and Safety Executive v Catalloy Ltd (2015) Warrington Crown Court, September 25

Catalloy Ltd, a chemical company which makes metal catalysts, has been fined following a hydrogen explosion.

Significant points of the case

  • In November 2011 the company made a modification to a reactor at its site in Widnes. On the first day of production after the modification, the reactor exploded. It blew the lid and other equipment through the roof of the factory.
  • The company had fitted a new seal on the reactor to prevent air getting into it. It had not properly considered the risks of the increased pressure inside the reactor.

The company was fined £80,000 plus £80,000 costs for breaches of sections 2 and 3, HSW Act, for failing to ensure the health and safety of employees and non-employees.

An HSE inspector commented after the case that the company dealt with potentially dangerous substances every day and it was vital that nothing was left to chance when it came to the safety of its workers.

The company should have carefully considered the risks of sealing the reactor but instead it continued with the production process and there was a major hydrogen explosion as a result.

VW emissions crisis and legal consequences

The car industry has been rocked by the admission that the biggest car maker in the world, Volkswagen, have cheated emissions tests in the US. The Environmental Protection Agency in the USA found that some cars on sale in America had devices in diesels engines which could detect when they were being tested, and accordingly improve performance. The effect is that the engines emitted nitrogen oxide pollutants up to 40 times over the US limit. Along with the potential for criminal investigations, from both within the US and Germany, UK, Italy, France, South Korea, Canada and Germany have all launched investigations. Switzerland has gone so far as to ban sale of some models of VW.

VW, who are also responsible for the engines in Audi, Seat and Skoda brands, the company is facing $18 billion in potential fines with 11 million vehicles potentially affected worldwide. They have set aside €6.5 billion to deal with the costs involved with recalling the affected vehicles. These figures, however, exclude potential costs of consumer litigation.
There have been suggestions from the German transport minister that VW have admitted to using the same fake emissions test in Europe as in US. If that is true, the value of the cars originally bought on the strength of their strong emission performance statistics, may decrease.
Jim Holder, editorial director at Haymarket Automotive which publishes WhatCar and AutoCar, told the BBC:
“In the short-term there will be an impact on the value of these cars and their desirability. That is because we do not know where the other 10.5 million cars with these cheat devices are, which has led to an obvious concern there will be some in Europe.”
If so, there may be claim for compensation based on the misinformation at the point of sale. Jacqueline Young, head of group litigation at law firm Slater and Gordon, commented that “If UK cars are found to contain defeat devices, this would give rise to a claim by car owners and car dealerships who bought VW vehicles on the basis of false information and whose asset has now devalued.”
However, as previous recalls, such as the Toyota/Lexus issues, did not create obvious impacts on used car’s values, such claims may be unnecessary. Clearly it is too early to tell the true extent but global litigation teams are certainly readying themselves for high profile international strings of litigation.

Banning things never works. Main example: alcohol prohibition in the United States

At midnight on January 16, 1920, alcohol was criminalised in the United States of America. The Volstead Act, the Eighteenth Amendment to the US Constitution, made it unlawful to manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor. The Act set out specific exemptions, for example industrial alcohol, sacramental wine, doctors’ prescriptions and “near-beer” with a maximum 0.5 alcohol content.

The Volstead Act made liquor advertising illegal and also stated that any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept or bartered was declared a common nuisance.

Prohibition lasted until 1933. It is generally accepted that its main effect was the encouragement of organised crime to evade the law and that the legacy of gangsterism developed by the Volstead Act continues to the present day.

The contemporary socialist analysis of Prohibition was that it was a deliberate attempt by the dominant bourgeoisie to avoid the real issues of poverty and exploitation. The ideals of the Prohibitionists – sobriety and hard work – meant that industrial workers would work more efficiently.

This analysis is supported by the activities of Henry Ford. He had required his employees to abstain from alcohol. He used a private police force for surveillance and anyone buying liquor a second time was dismissed. Ford’s only concern was efficiency. Alcohol consumption slowed the Ford assembly lines and caused accidents.

The circumstances in which Prohibition was repealed also support the contemporary socialist analysis. Edward Behr states the view that the reasons for the end of Prohibition were essentially economic. The stock market crash of 1929 and the Depression which followed it led to an increasing awareness on the part of industrialists that one of the effects of Prohibition had been to cut off tax revenues from the sale of alcohol. The Du Pont family, owners of munitions factories, stated that if America adopted Britain’s alcohol tax system, income tax could be abolished. John D Rockefeller, previously a strong advocate of Prohibition, argued strongly for its repeal in 1932.

Behr estimates that 500,000 people were convicted of offences under the Volstead Act. In some states, mandatory sentences were imposed for a fourth violation. In Michigan, two persons were sentenced to life imprisonment for possession of a pint of gin. These half a million people were generally those who lacked political or financial influence. Throughout the Prohibition era, politicians, enforcement officials and professional criminals dealt in alcohol with impunity. Bribery and corruption were endemic.

If traditional criminological questions are applied to the half million, some interesting answers emerge. Why did these people commit crime? Was it a genetic disorder? The shape of their heads? Peer pressure? Social deprivation? Inherited characteristics? Alcoholism? Psycho-sexual disorders? Did they suddenly cease to be subject to these factors on December 5, 1933, when the Eighteenth Amendment was declared void? Or is the truth that they were victims of a system which decided, for partly altruistic but essentially political and economic reasons, to criminalise them?

Prohibition is a clear example of the proposition that criminal law is what the state declares it to be. The half million Prohibition criminals were criminals because the state made them so. The state then decriminalised them thirteen years later when economic considerations prevailed. They ceased to be involved in criminal behaviour, and traditional criminological analyses became irrelevant.

Employment tribunals: a footnote in textbooks?

The role of the employment tribunal as a cheap, quick and informal means of settling employment disputes looks set to become a footnote in employment law textbooks. Political pressure to reduce the number of applications appears to have fundamentally changed the ethos of the tribunal. By imposing fees for applications and hearings, the government has created a financial hurdle in addition to a substantive one. Not only does this fly in the face of the original aims of the tribunal, it undermines the rule of law. Employment tribunal claims are reported to have fallen by 80 per cent.


Employment tribunals remain, marginally, a maverick element of English legal system. Despite desperate and calculated efforts by lawyers to bring them into the mainstream, they continue to retain residual elements of the tribunal rather than the court, with the aim of providing a quick and cheap resolution of employment disputes.

It is not clear for how much longer this can continue. At present there is no dress code, no advocacy monopoly and relative informality.