Relying on expired warnings
As you know, written warnings can be taken into consideration when deciding whether to dismiss an employee. But is it safe to rely on expired warnings? What does a recent case have to say?
Weighing it up
As you’re aware, since the new statutory disciplinary procedures were introduced on October 1, 2004, it’s vital to ensure that you’ve good evidence to justify any dismissal. This is where written warnings are important in determining if an employee’s performance has come up to scratch. But what happens if a key justification for dismissal lies in the terms of a warning which has expired? Is it safe to rely on it? What does recent case law say?
Stringent safety rules
This was considered in Diosynth v Thomson 2006, Thomson (T), was employed by Diosynth (D), in its chemical processing factory in Scotland. Due to the potential safety hazards, this industry is heavily regulated and D was required by law to implement various safety procedures. In order to ensure that these were followed, D had a thorough training programme in place. This instructed staff on the need to follow detailed procedures for loading chemicals into vats and to complete records to confirm that this had been done.
A rule-breaker
T had both completed and understood this programme. However, in July 2000, he failed to comply with a basic safety precaution which led to a chemical spillage. As a result, he was given a written warning which was to remain in force for twelve months. However, 17 months later, on November 11, 2001, there was an explosion which caused a fatality. An investigation was carried out and T and 17 other operators were found to have breached the safety rules. Whilst the others were disciplined, T was sacked. This was because D felt that he was incapable of following instructions, despite having already been disciplined. T claimed he’d been unfairly dismissal.
Dismissal is unfair
The tribunal dismissed T’s claim, so he appealed to the Employment Appeal Tribunal (EAT). It upheld his appeal so D appealed to the Court of Session (the Scottish equivalent of the Court of Appeal). It held that the dismissal was unfair as it was unreasonable to rely on an expired disciplinary warning. Plus, it had failed to mention dismissal as a sanction. If D wished to rely on such a warning, it should have been given without a time limit, e.g. in circumstances such as these where the needs of safety would justify this. It rejected the argument that an expired warning was one factor that could be taken into account in deciding whether or not D had acted reasonably in dismissing T. Instead, it upheld the EAT’s finding of unfair dismissal.
Staying legal
As this is a Scottish case, it’s not binding on English and Welsh courts, but it will be given consideration by them in the future. For this reason, review how you give warnings.
Tip. When issuing a written warning make its status clear. For example, whether it’s a first or a final one and if it’s a final written warning, state that any further breach could lead to dismissal. Only retain the right to extend written warnings in exceptional circumstances.
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