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Considering a previous warning and fairness of subsequent dismissal

29th June 2011

In deciding if a decision to dismiss an employee was fair, an Employment Tribunal will often take into account any previous warning(s) that have been issued to the employee.

In the recent case of Davies v Sandwell Metropolitan Borough Council, the Employment Appeals Tribunal (EAT) ruled that an Employment Tribunal had been mistaken in treating an employee's decision not to appeal against a final written warning as a relevant factor in deciding whether the employer could later rely on that warning when deciding to dismiss the employee. The EAT observed that it could not be assumed that the warning could fairly be relied upon because the employee had failed to appeal against the previous written warning, particularly because her reason for not appealing did not involve an explicit or implicit admissions that the allegations in question were true.

The case involved a teacher. She had received a verbal warning in September 2004. Then in October 2004,following further complaints about her conduct in a lesson she was suspended. During the disciplinary hearing the employee produced evidence which established that two of the pupils that had raised complaints could not have been in her class on the date in question. However, the disciplinary panel refused to accept that evidence as it had been produced late. The panel went on to issue the employee a final written warning. Initially she chose to appeal against that penalty, but after speaking to her Trade Union representative, decided to drop the appeal (as the appeal could have resulted in a more severe penalty being imposed). 

Further complaints were received about the employee in 2006. The employer decided to dismiss the employee on this occasion, upholding  5 out of the 10 allegations against her. The employeer decided that of the 10 allegations 2 were serious incidents of misconduct, and one was of a less serious level of misconduct. The employer maintained that it had not relied solely on any single complaint, but any one one of the incidents in conjunction with the previous final warning gave it sufficient reason to dismiss the employee. Therefore it was clear that the previous warning was being relied upon by the employer in justifying the later decision to dismiss. The Employment Tribunal was satisfied that the previous warning had been given in good faith. It was also satisfied that as the employee had been givena chance to appeal against that warning but chose not to pursue an appeal that the employer was entitled to proceed on the basis that there was a current and valid disciplinary warning against the employee.

On dealing with the appeal against the decision of the Employment Tribunal the EAT reviewed the relavant case law. It was ntoed that an employer is entitled to take into account a current disciplinary warning against the employee in question. It was also noted that Employment Tribunals should not normally re-open any previous disciplinary warning. However the Tribunal is entitled to consider if the previous warning was issued in good faith, and if there were prima facie grounds to justify the previous warning or not, or if it was manifestly unfair. 

In applying the relevant principles to this case the EAT concluded that the Employment Tribunal had been mistaken in treating the decision of the employee not to pursue the appeal against the  previous warning as a relevant factor in considering if the employer could have relied upon that warning in the later decision to dismiss the employee. The Tribunal had been quite critical of the procedural defects that occurred in connection with the decision to impose the previous written warning. The EAT therefore ruled that the case should be reheard by the Employment Tribunal to decided of the dismissal was fair in light of the procedural defects in the previous written warning regardless of the fact that the employee decided not to pursue the appeal against that warning.

The practical lesson from this case is that employers cannot treat a previous disciplinary warning as being reasonable and valid simply because the employee did not appeal against it. The case also reminds employers that warnings at all levels really should be issued for valid and appropriate reasons. The case also highlights the fact that all grievance and disciplinary procedures should be followed fairly and consistently at all stages (not just in dealing with a decision to dismiss). Although Employment Tribunals will not be drawn into re-opening old disciplinary warnings, this case reminds employers that the Employment Tribunal will not always accept it as reasonable or fair for an employer to rely on every current disciplinary warning on an employee's record when considering the fairness of a subsequent decision to dismiss that employee. The facts of this case also indicate that it may well be unreasonable of an employer to reject evidence supplied by an employee in a disciplianry process simply because is was provided outside the stated time limit. A degree of flexibility on time limits should be applied when an employee produces relevant evidence to a disciplinary hearing.

At Hallett Employment Law Services we can provide advice on the correct handling of disciplinary procedures.

If you need any help or advice in dealing with a problem raised in this artcile please do not hesitate to contact us.            

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