Diosynth Limited v Thomson
Court of Session
Expired disciplinary warning cannot be taken into account when considering the sanction for subsequent disciplinary offence
Thomson was employed in a factory where raw chemicals are processed by way of chemical reactions to produce chemical compounds. The process is highly regulated and there is a constant risk of accidents in the form of explosions or leakage of chemicals. Therefore, all employees are required to follow Diosynth’s safety, health and environmental rules of procedure (SHERPS). Thomson accepted that he was well aware of this, had been trained in, and understood the importance of, the process he was required to follow in relation to the role he performed.
In July 2000, Thomson was issued with a written warning and suspended without pay for three days for failing to follow a SHERPS rule which had resulted in a chemical leakage. Thomson assured his manager this was an isolated incident and he would always follow procedure in future. He was told that any failure to do so would result in disciplinary action. The written warning was to last for 12 months.
Fifteen months later, following an explosion in which an operator died, a thorough investigation was carried out into adherence to the SHERPS rules. It was discovered that 18 operators, including Thomson, had failed to follow the same SHERPS procedure that Thomson had previously failed to follow. All 18 operators were disciplined.
Thomson accepted that he had failed to follow the procedure on three specific occasions and had falsified the records to indicate that in fact he had done so. Thomson was dismissed summarily. Diosynth made it clear that without the previous warning, Thomson would not have been dismissed.
The tribunal decided that Diosynth was entitled to take the previous warning into account as part of the relevant history of events and that the dismissal was fair. However, the EAT and the Court of Session (the equivalent level of appeal in Scotland to the Court of Appeal in England & Wales) disagreed. The Court of Session found that Diosynth was not entitled to use the time-expired written warning as the basis for taking more serious disciplinary action than otherwise would have been taken. The dismissal was unfair.
- A warning which is allowed to remain on an employee’s record indefinitely will not normally be consistent with good industrial relations practice.
- If an employer expresses a warning to be valid for a specified period of time, it is unfair to take that warning into account as a determining factor after the warning has expired. The Court of Session stated that the employer cannot complain if it is later unable to rely upon the expired warning.
- The Court of Session reiterated that the Acas Code of Practice should form the basis on which an employer’s conduct is judged and should be used by tribunals as a guide to good industrial relations.
What you should do
- Handle expired disciplinary warnings with care. Do not rely on them as a key factor in tipping the balance between dismissal and a lesser disciplinary sanction.
- Give thought to the duration of any disciplinary warning at the time it is issued. Bear in mind that it will normally be necessary to fix an expiry date for the warning.