Tribunal erred in looking at expired warning
2 Feb 06
Unfair dismissal claim succeeds despite fatal blast inquiry finding procedure breaches
A chemical worker found to have breached safety procedures following an inquiry into a fatal explosion at a plant has won his claim for unfair dismissal.
Morris Thomson was dismissed for gross misconduct by his employers Diosynth Ltd from his job at their factory in Buckhaven, Fife. An employment tribunal rejected his claim for unfair dismissal, but the employment appeal tribunal overturned this ruling and yesterday that decision was upheld on the employers' appeal to the Court of Session.
Mr Thomson was one of 18 operators at the plant whose failures were uncovered following an investigation into a fatal explosion in November 2001. He admitted that in the weeks leading up to the explosion he had failed to "inert" containers which were to be filled with chemicals by pumping out air and replacing it with inert nitrogen, to prevent accidental combustion - and to making false records on each occasion.
Previous warning
In June 2000 Mr Thomson had been given a written warning and suspended without pay for three days for failing to carry out this procedure. The warning was to remain on his record for 12 months.
However the letter remained on his file when the later discipline hearing was held, and Mr Thomson was sacked "due to the seriousness of this matter and due to you receiving a previous warning for the same issue".
The employment tribunal, by a majority, held it reasonable to take account of the letter as part of the relevant history, even though it had expired; but the appeal tribunal ruled it unfair to take account of a warning which was not said to be a final warning and which had lapsed.
"Unreasonable" to extend effect
The Court of Session agreed. Speaking for the court, Lord Philip said: "in regarding the warning as tipping the balance in favour of dismissal, the appellants acted as if it remained in force beyond the expiry of the 12 month period. Their position was that the other factors, taken together, would not have justified that course of action....
"The respondent was entitled to assume that the warning letter meant what it said, and that it would cease to have effect after one year. In seeking to extend the effect of the warning beyond that period the appellants, in our view, acted unreasonably. We therefore agree with the conclusion of the Employment Appeal Tribunal that the respondent was unfairly dismissed."
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2006CSIH05.html .