Legal advice: Warning employees

A recent case which should be noted by publicans concerns the dismissal of an employee who had broken important health and safety rules laid down by his employer. The employee worked in an industry which handled chemicals. The incorrect handling of those chemicals could lead to death, and accordingly the employer's disciplinary procedure said that a serious breach of safety rules would be treated as gross misconduct.

After various incidents involving employees breaking safety rules, all employees were given further training and each promised they would abide by the health and safety rules. Unfortunately the employee in question did not do this and received a written warning in July 2000. This written warning had a shelf life of 12 months.

In autumn 2001 there was an accident at the employee's place of work which killed one of his colleagues. An investigation showed that breaches of health and safety rules were common place. Eighteen employees, including the employee in question, were guilty of breaking the rules.

All 18 employees were disciplined, but the employee in question was the only one sacked, as he had a previous warning for a similar matter on his file, even though that warning had lapsed.

The Scottish Court of Appeal decided that in the circumstances it was unfair to dismiss the employee. The other 17 received warnings.

Had the employer dismissed all 18 employees (or those who had been proven to have breached the most serious health and safety rules), so demonstrating that the penalty for breaching health and safety rules at the plant was dismissal, this would have been fair. Instead, the proper penalty for the breach was a warning.

The employee was dismissed for committing a second offence deserving a warning (despite the first warning having lapsed) and this was considered unfair.

So publicans have to consider which breaches of rules (if any) they consider to be sackable offences and which warrant a lesser punishment. If changes take place which require some working practices to be enforced in a different manner, then staff should be alerted. Enforcement has to be consistent across the board.

If someone is on a warning which is still "alive", rather than "spent", only then can you safely consider a more draconian penalty on one person over others found to have committed the same breach (even if a spent warning was for a similar "offence").

The obvious areas where a manager may want to consider such penalties are sales to underage persons, ignoring health and safety guidelines or other offences which could lead to a review of a premises licence.