"Joking around" by open sewer leads to dismissal

Friday 23 February 2024

A man who nudged a fellow employee as he stood over an open sewer, joking that he should avoid falling in, was not unfairly sacked, the Employment Tribunal has decided.

Trevor Jones had taken his former employer Bellpumps and Pollution Control Ltd to the Tribunal, claiming that they had been wrong to dismiss him following the incident on 24 August last year when he said he had given his colleague "a little nudge" on the shoulder.

However, an investigation into the incident confirmed that the concrete sewer was three metres deep and contained 30 centimetres of sewage, so that a fall into it was likely to cause significant injury, or even death if a person were to become unconscious.

Following a disciplinary hearing, Mr Jones was summarily dismissed but he claimed that he had been unfairly treated because:

• his case had not been independently reviewed; 

• the decision was affected by an outstanding complaint he had made against the man who dismissed him; 

• others within the company had been treated differently for similar conduct; and 

• the sanction of summary dismissal had been excessive.

Pictured: The case was heard by the Employment and Discrimination Tribunal.

Reviewing the case, Deputy Chairman Mrs Hannah Westmacott said: "It is possible that some employers may have agreed with the claimant and considered dismissal excessive and instead given [him] a warning and a second chance.

"However, the test for unfair dismissal does not require me to determine what should have been done, but whether what the respondent did was something that a reasonable employer could have done in the circumstances of the case.

"Although the claimant acknowledges he made a mistake, I find that, bearing in mind the severity of the mistake and the potential consequences that could have occurred and should have been apparent to the claimant, a reasonable employer could have dismissed [him] for this conduct."

But while she found that both the reason for the dismissal and the process the company followed were fair, taking into account the fact that there had been no intention to cause injury, she concluded that the company had been wrong to dismiss Mr Jones without notice.

Consequently, she awarded him damages equating to a week's wages of £640.