Fair dismissals involving previous disciplinary warning

It is common for an employer to take into account a prior disciplinary warning when deciding whether or not to dismiss an employee over a new disciplinary allegation. However, in examining a dismissal in these circumstances can an Employment Tribunal look into the details of the previous warning when deciding if the later decision to dismiss was fair or not?

The Employment Appeal Tribunal considered this issue in the recent case of Wincanton Group v Stone. 

The case concerned a lorry driver who was dismissed for misconduct after a driving accident, which had resulted in injury to a colleague. At the time of the accident the driver already had a written warning on record, albeit for a different type of misconduct. 

In reaching the decision that the later decision to dismiss the lorry driver was unfair the Employment Tribunal had noted that the employer had taken into account the earlier discipinary warning in deciding to dismiss the lorry driver. The Employment Tribunal had concluded that as the previous disciplinary warning related to a different type of misconduct, that the employer had acted unfarily in taking it into account in deciding to dismiss the lorry driver over the later accident. The former employer appealed against that decision.

The Employment Appeal Tribunal (EAT) overturned the decision of the Employment Tribunal, and in doing so gave a short analysis of cases and the provisions of the ACAS Code of Practice on this issue. 

The EAT noted that the overall question is whether or not the employer acted reasonably in treating the conduct in question (in this case the accident) as a fair reason for dismissal. In deciding this the EAT stated that Employment Tribunals should take into account:-

-the facts of an earlier warning,

-any proceedings that may affect the validity of an earlier warning (such as an internal appeal) and consider what weight the employer gave to that challenge before dismissing the employee, and

-avoid "going behind" (ie re-examining and re considering) the earlier warning by considering its validity unless satisfied that to do so is appropriate.

However, in this context Employment Tribunals will not be "going behind" a previous warning by simply taking into account the factual circumstances that gave rise to it, eg considering whether the types of conduct giving rise to an earlier warning and ultimate dismissal were similar or not, and the Employment Tribunal may consider the particular features of a situation, as well as the consistency of the employer's approach. 

An important factor in the decision of the EAT in this case was the fact that the ACAS Code of Practice in stating that employers may take into account current disciplinary warnings does not restrict this to warnings covering identical or similar disciplinary offences.

There is a practical issue here too, in that the Employment Tribunals could become bogged down if claimants were to be able, as a matter of routine, to re-open prior disciplinary warnings that they may have on their record that the employer took into account in deciding to dismiss. The ACAS Code of Practice, and the relevant case law indicates that warnings should only be "live" on an employee's disciplinary record for a limited, defined period. This should stop employers relying on old warnings to justify a later decision to dismiss.

The decision of the EAT in this case is clearly both sensible and practical, and generally gives some comfort to employers. The key is always to remember that disciplinary procedures should be used fairly and consistently, and employees should know how long any warning will stay live (and therefore potentially relevant to any later disciplinary decision).

If you require any advice or assistance on these matters please do not hesitate to contact Hallett Employment Law Services.