An important reminder to employers

Expired warnings cannot be taken into account when deciding to dismiss.

Diosynth Limited produces chemicals for use by companies in the pharmaceutical industry. Due to the health and safety risks involved in this industry, Diosynth Ltd has a strict health and safety regime which all employees are required to follow.

Mr Thompson, an operator with Disosynth Ltd, was trained and fully understood the health and safety rules that applied to him at work. It was also expressly specified in Diosynth’s disciplinary policy that “serious breach of safety rules, potentially involving loss of life or limb” and “flagrant failure to follow company documentary procedures and regulations” would be treated as gross misconduct.

In July 2000 Mr Thompson was issued with a written warning relating to his failure to observe a key health and safety procedure. He failed to “inert” a vessel – a process designed to prevent accidental combustion and spillages.

He was informed that any further failure would result in disciplinary action and was informed that the warning would stay on his record for a period of 12 months.

In November 2001 a serious explosion occurred as a result of various failures to “inert” a vessel on the part of 18 different operators, including Mr Thompson. This resulted in the death of one individual. Diosynth Ltd took the decision to dismiss Mr Thompson “due to the seriousness of this matter and due to his receiving a previous warning for the same issue”. The Court of Session confirmed the Employment Appeal Tribunal’s decision that Mr Thompson had been unfairly dismissed since the expired warning had been taken into account. Mr Thompson was entitled to assume that the warning letter would cease to have effect, and in extending the duration of the warning Diosynth Ltd acted unreasonably.

The Court also referred to the ACAS Code of Practice and the fact that where its provisions are relevant to a question arising in proceedings, the tribunal should take its provisions into account. The Code specifically refers to the fact that warnings should normally be disregarded after a specific period. The Court interpreted this as a clear inference that a warning which remains hanging over an employee’s head for an indefinite period would not normally be consistent with good industrial relations practice.

This case is an important reminder to employers that expired warnings cannot be taken into account when deciding to dismiss – even in cases where the consequences of misconduct are very serious. The case is also a reminder that employers should act in accordance with the ACAS Code of Practice when dismissing employees.

Even though this decision is not binding on the tribunals of England and Wales, it is likely to be held as a very persuasive authority. It is also worth mentioning that the case was decided on the basis that the previous warning was a key reason for dismissal – this suggests that the employee may have been lawfully dismissed on the grounds of gross misconduct alone if the employer had not referred to the previous warning.

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