Diosynth Limited V. Morris Thomson
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Osborne,Lord MacLean |
| Judgment Date | 01 February 2006 |
| Neutral Citation | [2006] CSIH 5 |
| Court | Court of Session |
| Docket Number | XA25/05 |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Philip Lord MacLean | [2006] CSIH 5 XA25/05 OPINION OF THE COURT delivered by LORD PHILIP in APPEAL against an Order and Judgment of the Employment Appeal Tribunal dated 13 December 2004 and issued on 31 January 2005 in the cause DIOSYNTH LIMITED Appellants; against MORRIS THOMSON Respondent: _______ |
Alt: Napier, Q.C.; Allan McDougall & Co., SSC
1 February 2006
[1] This is an appeal by Diosynth Limited, the appellants, from a decision of the Employment Appeal Tribunal issued on 31 January 2005. The respondent is Morris Thomson who was employed by the appellants from January 1996 until he was dismissed on 21 December 2001. He subsequently complained that his dismissal was unfair and applied to the Employment Tribunal for a determination to that effect. After a lengthy hearing, in which the respondent's case was heard along with those of two other employees who were dismissed on the same day, the Employment Tribunal, by a majority decision, dismissed his complaint. He then appealed to the Employment Appeal Tribunal who sustained his appeal and granted the appellants leave to appeal to this court.
[2] The appellants are part of the Pharmaceutical Division of the Akzo Nobel group of companies which is based in the Netherlands and employs about 66,000 people worldwide. At their factory at Buckhaven in Fife they employ about 170 people producing chemicals for use by major companies in the pharmaceutical industry. At the factory around 70 raw chemicals, in liquid, solvent or powder form, are processed to produce chemical compounds which in turn are made into drugs by the appellants' customers. The processes are in fact chemical reactions carried out on an industrial scale.
[3] The production of any chemical product is highly regulated and controlled. Standards are imposed by various national and international agencies which must be complied with by the appellants. They also follow a worldwide protocol aimed at ensuring high standards in the manufacture of drugs and medical products known as Good Manufacturing Practice (GMP). The appellants' policies and practices, including those relating to health and safety, are audited, and their production processes closely monitored by their customers in order to ensure that they, the customers, receive chemicals of the highest quality. Since the processes take the form of chemical reactions there is a constant risk of accidents, in the form of explosions or leakage of chemicals, which could affect the health and safety of employees. The appellants have established a system of safety, health and environmental rules of procedure, known as SHERPs rules, which all employees are required to follow.
[4] In the light of all these factors the appellants have a highly developed training programme for their employees aimed at developing knowledge and skills with a view to ensuring that each employee understands his role in the process, its relationship to the roles of others, and its impact on quality. The programme, in which the respondent's customers maintain a keen interest, includes training on health and safety awareness, including the SHERPs rules. All employees also complete three GMP training modules which emphasise the importance of completing production records fully and accurately.
[5] The training programme undergone by the respondent who was employed as an operator, began with induction which included instruction on a process known as "inerting" and its safety implications. This process is explained in greater detail below. After induction, employees were trained in every step of the processes in which they were to be involved. There was no dispute that the respondent was trained in, and understood, the importance of the process which he was subsequently accused of failing to follow.
[6] A document known as a Standard Batch Process Record Sheet (SBPRS) was prepared for each chemical process and included detailed information about each step of the process and the equipment necessary to perform it. Throughout the training programme it was made clear to all operators that there required to be 100% compliance with the instructions on the SBPRS. Some of the steps involved the operator who carried them out in signing the SBPRS to confirm that the step had been performed. In some instances specific information had to be inserted in connection with the particular step. Sheets were not to be completed in advance nor were they, generally, to be completed retrospectively. Only where there was certainty that the step in question had been carried out had a supervisor or production manager the authority to agree to an operator signing the form retrospectively. Once a production process was complete the SBPRS was scrutinised by a number of individuals at management level who checked that the sheet was properly completed and that the measurements recorded (for example, the temperature of the product at different times or the pressure level achieved at certain stages) were within the limits allowable for the production of a chemical of the required quality.
[7] The appellants' disciplinary policy document provided 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 acts of gross misconduct.
[8] Many of the processes carried out at the factory involved putting chemicals into containers known as vessels or dryers. This process was known as charging. Some of the processes involved charging dryers with chemicals through hatches. The process of charging vessels or dryers frequently involved the step known as inerting. Inerting was effected by the operator pumping air out of the container, thus creating a vacuum inside the vessel or dryer and replacing it with nitrogen, an inert gas, in order to prevent accidental combustion. The gas pressure in the vessel or dryer was reduced below atmospheric pressure. Operators were trained and instructed by SBPRS to evacuate the vessels or dryers to minus 0.7 bar before introducing nitrogen. At minus 0.7 bar the amount of oxygen left in the container was less than that required to support combustion. The process of inerting also provided a check that all the valves on the container were closed so that the risk of chemical spillage from the container was minimised. It was not disputed by the respondent that failure to inert was a breach of a safety rule which could lead to explosion and result in loss of life or injury. The need to inert was strongly emphasised by the appellants in their training programme and the respondent accepted that he was well aware of the requirement to inert and that the process was related to safety.
[9] Each time an employee carried out the inerting process he was required to enter in the SBPRS the start and finish times of the procedure and the level of vacuum achieved, and to sign the entry. This level of detail was required in order to maximise compliance on the view that a requirement to record accurate measurements was more likely to ensure that the operator performed the step properly. The system of ensuring that all steps in the production of a particular chemical were properly performed and accurately recorded operated largely on the basis of trust in respect that the appellants trained their staff thoroughly and impressed upon them the importance of carrying out their part in the process to the required standard.
[10] In November 1998 an incident occurred in the factory which led to a chemical spillage. The spillage was caused by the failure of an employee to inert a vessel prior to loading chemicals into it. The process of inerting would have revealed that one of the valves on the vessel was open and the incident would not have occurred. The employee tried to cover up the spillage rather than report it to his supervisor and falsified the process documentation. As a result he was dismissed. During the course of the investigation of the incident other failures were discovered and the appellants' managing director and site operations manager held joint briefings with all employees, including the respondent, in December 1998. At each briefing it was emphasised that the employee in question had failed to follow the steps on the SBPRS, including those relating to inerting, that he had thus endangered himself and others, and that he had also falsified entries on the SBPRS. It was made clear that all steps in the SBPRS and in the GMP protocols had to be followed, that authorisation was required before a step could be missed out, and that no false entries or entries made in anticipation of the relevant step being taken would be tolerated. It was made clear that the employee in question had been dismissed and the respondent, along with all those who attended the briefings, gave an absolute commitment that in future he would comply with the SBPRS steps and all other requirements.
[11] In July 2000 the respondent was disciplined for failing to inert a vessel. He received a written warning and was suspended without pay for 3 days. As a result of failing to inert, he failed to close a valve in the vessel and a leakage of methanol occurred. After that failure had been discovered, the respondent assured the site operations manager that it was an isolated incident and that he would always inert in future. He was told that any...
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