In deciding whether a dismissal is fair or unfair, the Employment Tribunal will take into account whether or not a disciplinary warning was given. In the case of Diosynth Ltd. v Thomson, the Court of Session in Scotland recently considered the problem as to whether reliance can be placed on a warning that has expired.
Morris Thomson was employed by Diosynth Ltd. at its factory in Fife. The company produces chemicals for use in the pharmaceutical industry.
In July 2000, Mr Thomson was disciplined for failing to comply with a basic health and safety measure which resulted in a leakage of methanol. Prior to this, in 1998, Mr Thomson had been amongst a group of employees who were required to give an absolute commitment that they would henceforth comply with the strict procedures and documentary processes required of them. This followed a similar breach of the safety measure when an employee was dismissed for failing to follow basic procedures.
Diosynth’s disciplinary policy made it clear that a serious breach of safety rules and failure to follow company procedures and regulations would be regarded as gross misconduct. Mr Thomson assured the site operations manager that this was an isolated incident and he was given a written warning and suspended without pay for three days. The terms of the warning stated that the letter would remain on his record for 12 months.
In November 2001, five months after the warning had expired, an explosion occurred at the factory which led to the death of one of the operators. An investigation revealed that Mr Thomson and 17 other employees had on occasions failed to carry out the same basic safety measure. Disciplinary hearings were held but only Mr Thomson was dismissed. The Managing Director and Human Resources Director concluded that in the light of the warning issued in July 2000, he was incapable of following clear safety instructions even after he had been disciplined for not doing so and they had lost confidence in his ability to protect his own safety and that of others.
The Court of Session held that Mr Thomson’s dismissal was unfair. He was entitled to assume that the warning letter meant what it said and that it would cease to have any effect after one year. Diosynth should have issued a warning without time limit if they intended to rely on it subsequently.
Employers in businesses where health and safety issues figure prominently should ensure that disciplinary and health and safety policies set out clearly what action will be taken in the event of any breach. Care should be taken not to rely on a previous written warning that has expired.
