Expired Disciplinary Warnings

The Court of Session has, today, handed down an interesting judgment dealing with whether employers can rely on a written warning which has expired.

Mr Thomson worked in a chemical factory. He was well aware that failure to comply with important health & safety rules might cause serious injury and would potentially be regarded as gross misconduct.

In July 2000, he failed to comply with a basic health & safety measure, leading to a chemical spillage but no injury. He was given a written warning, expressed to last for twelve months.

In November 2001, about 17 months later (so five months after the warning expired), following an explosion in which somebody died, he was again found to have ignored the same health & safety measure. 17 other operators were also discovered to have ignored the health & safety measure. The other 17 were not dismissed, but Mr Thomson was dismissed on the basis that the employer thought he was incapable of following clear safety instructions even when they had been specifically brought to his attention in a disciplinary context.

The Court of Session held the dismissal was unfair, as it was ipso facto unreasonable to rely on an expired disciplinary warning. The Court of Session rejected what is arguably a stronger argument, that the fact a warning has expired is one factor to take into account in deciding whether the employer had acted reasonably in treating the health & safety breach as a sufficient reason to dismiss. Instead, the Court of Session held that it is unarguably the case that an expired warning cannot be a factor in deciding the sanction, and confirmed the EAT's substitution of a finding of unfair dismissal (rather than remitting the case to the tribunal to reconsider).

This case is important and well worth reading.

Diosynth v Thomson

[Thanks to Brian Napier QC, who acted for Mr Thomson, for informing me of this decision]