Unqualified director who installed a cryo-chamber which leaked harmful gas was unfairly dismissed, tribunal rules

Tribunal found that principal health and safety officer did not raise concerns about director conducting the work in ‘bag of horrors’ case

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A director of a cryochamber company who had no engineering experience was unfairly dismissed after he installed a cryo-chamber which leaked out harmful gases, a tribunal has ruled.  

The video tribunal found that Mr D Morris’ dismissal from CryoAction was “unreasonable” as the technical director and principal health and safety officer Mr Turton raised no concerns about Morris. 

The tribunal ruled that though Morris was “not a qualified engineer”, he was “competent” to undertake the “straightforward” work of installing the later-discovered faulty chamber, which was manufactured and checked in Poland. 

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The tribunal heard that CryoAction, which provides cryotherapy equipment to facilities and clinics, operated through a Polish subsidiary, CryoAction for manufacturing, and a UK subsidiary, CryoServe for service and maintenance work. 

CryoAction was set up by Morris and Mr Saunders in 2018, who both titled themselves as directors and were equal shareholders in the business. 

The cryo-chambers were either installed internally within a client's building or installed externally, and this required different instalment processes. Internally meant the chamber would be delivered as a “flat pack” and installed by engineers from Cryoserve, while externally meant the chamber would be pre-built at the Polish manufacturing facility and connected up on-site. 

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External units required a third party company called BOC to fit the pipework and enable the liquid nitrogen flow to the tanks. The tribunal heard that Mr. Turton, who was initially an employee of BOC before joining CryoServe, would usually attend to fill the liquid nitrogen tank and check the equipment. 

The tribunal heard that in later years the pipes and valves involved the use of a safety valve known as an “actuator”, which needed to be connected to an electrical supply by a “simple” two wire connection. It said that liquid nitrogen was “dangerous when it expands” as it displaces oxygen and leads to an asphyxiation risk, and the actuator ensures that the supply of liquid nitrogen would be cut off in the event of a fault. 

Prior to 2019 before the appointment of Turton, Morris and Saunders would undertake technical “hands on work” such as repairing leaks and clearing debris from the valves, and the tribunal heard that Morris would wire the actuator. In June 2019, following Turon’s appointment, the company produced an installation protocol document which predominantly covered installation of the internal “flat pack” installation processes, and the majority of these installation protocols stated it should be allocated to the technical arm of the business, specifically Turton. There was also a meeting held in December 2019 to the same effect, but the tribunal said it didn’t make reference to restrictions on Morris undertaking any work of this nature.  

Throughout January 2020, Morris had negotiated the sale of a new internal chamber to be installed at a premises in Glasgow. The tribunal heard that the chamber was manufactured and tested in Poland, with delivery of the unit taking place on 10 January, and an external company installed the pipes and valves for the liquid nitrogen on 24 January. The final task was to wire up the actuator and test the supply of liquid nitrogen to the chamber. 

On 17 January, Morris messaged Turton to ascertain his availability to install the actuator but Turton was not available so Morris said he would complete the job. Judge S Jenkins noted that Turton did not seem a person to be “slow to point out when things were wrong” and that if he had concerns about Morris undertaking the work he “would have said so”. 

The tribunal heard that on 31 January,  Morris messaged Turton and other engineers in Poland for help with several things during his final checks of the actuator, which involved him – as per advice from qualified engineers – moving a lever connected to actuator which would essentially disable or enable its function. 

On 17 February, the company was informed that a BOC employee had gone to refill the liquid nitrogen tank at Glasgow and noticed a discharge of gas from a pipe in the chamber room. A picture of the lever Morris had moved showed it was in the bypass position, meaning it would not shut off the gas supply in the event of a fault, and this picture proved to be a “crucial piece of evidence” for the company in Morris’ dismissal. 

On 26 February, Saunders decided the issue was serious and needed to be “investigated from a disciplinary perspective”, and removed Morris’ access from company systems and offices by changing the locks. Morris was on annual leave from 2-11 March, and during this time Saunders changed the locks and removed Morris’ access from the WhatsApp group chats and company emails. 

On 5 March, Morris was suspended until further notice pending an investigation for gross misconduct for attempting to install equipment against company procedures. It also said that if the leak had occurred overnight or at a weekend it could have resulted in a “serious risk to life…fatalities, but could also have had serious consequences for the company”. 

Morris was invited to an investigation meeting on 20 March which concluded a formal disciplinary hearing should take place on 23 April, which then had to be reconveined on 30 April because all the issues were not covered. The disciplinary concluded that Morris was guilty of gross misconduct and he was informed via letter on 14 May that he was being dismissed. 

The reasons included that he was “not competent” to undertake the work, had “gone against company policy”, “disregarded safety protocols” by putting the valve in bypass mode - despite being advised to do so by qualified colleagues. It also said that Morris’ actions had potentially led to serious risk of injury and potential financial risk to the company. He was dismissed with immediate effect without notice or payment in lieu. Morris appealed the decision but was unsuccessful. 

Judge Jenkins said that CryoAction’s conclusion of gross misconduct was “unreasonable in the circumstances” as Morris sought telephone assistance from the principal health and safety officer who did not “at any stage” raise concerns. 

Morris was awarded £15,028 for wrongful and unfair dismissal but his compensatory reward was reduced to reflect that his employment would have ended fairly within six months as his relationship with Saunders was “breaking down”. 

Sarah Williams, head of employment at Taylors Solicitors, said the case reminded the amazingness of “how often employers get things wrong, adding that it is a “good read” for every HR specialist . 

“This case highlights the extent to which matters become messy when policies, procedures, job descriptions and communication are not entirely clear, and also highlights the potential impact that these matters have on health and safety,” said Williams, adding that it is a “bag of horrors” for people professionals as it included a “conflict of interest, a potential shareholder dispute and the terror of a nitrogen gas leak”.

Keely Rushmore, employment partner at Keystone Law, said the case highlighted the importance of reasonable investigations. 

“Even though the Employment Tribunal accepted the employer had a genuine belief in Mr Morris’ guilt, it found the investigation into one of the key three allegations against him to have been insufficient,” she said.  

People Management has contacted CryoAction for comment. Morris could not be reached.