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Unfair dismissal and the relevance and validity of previous disciplinary warnings

31st January 2014
A couple of recent cases have provided further guidance on the thorny question of how far an employer can consider previous disciplinary warnings when deciding to dismiss an employee.

In the case of Rooney v Dundee City Council the Employment Appeals Tribunal (EAT) was asked to consider if an Employment Tribunal can decide if it was reasonable for an employer to dismiss an employee taking into account a final written warning when an appeal against that warning remained outstanding, without hearing further evidence about that previous warning.
In this case the individual had received a final written warning for failing to carry out an instruction. The individual appealed against the decision to impose a final written warning. However, the appeal had to be postponed on a number of occasions. In the meantime further issues arose resulting in discipinary action being taken over the individual's alleged inappropriate behaviour. The final written warning (subject to the pending appeal) was still "live" at this time. 

The later allegation (ie of inappropriate behaviour) was upheld. The disciplinary officer that held the disciplinary hearing concluded that in isolation the new allegations would normally only have resulted in a final written warning. However, as the disciplinary officer felt that the second set of allegations had some similarities with the previous allegations that taken together the facts justifed the decision to dismiss the employee. 

At the Employment Tribunal the case of Wincanton Group v Gregory was raised (see our News article November 2012). That case provided some guidance on the relevance of previous warnings to a decision to dismiss. The Wincanton case included guidance that an Employment Tribunal is entitled to consider if an appeal against the previous warning has been raised. However, in this case the EAT concluded that the employer's decision to dismiss the employee fell within the range of reasonable responses open to it at that time, in the knowledge that there was a pending appeal against the previous final written warning. The EAT noted that the second allegation was serious enough to justify proceeding with the disciplinary process knowing that an appeal over the previous warning was still pending. 

In the second case, that of Adegobola v Marks and Spencer plc the Court of Appeal has confirmed that an Employment Tribunal is entitled to consider the reasonableness of a final written warning when assessing the fairness of a subsequent dismissal. However, on the facts of the particular case the COurt of Appeal said that the individual could have properly been dismissed anyway without consideration of the previous warning. This case involved an individual that had received a final warning after an incident with another member of staff. The individual tried to appeal against that decision but the employer did not hear an appeal on the basis that it was being brought after the stated deadline. The subsequent allegations concerned an argument with a member of staff and the improper use of a store card (purchasing for resale contrary to the company policy on the use of the store card). The individual was dismissed, and an internal appeal was rejected. At the Employment Tribunal the individual argued that the officers that conducted the investigation and that held the disciplinary that resulted in the dismissal should not have been involved in that process as they had been involved in the previous hearing that resulted in the earlier disciplinary warning. The Employment Tribunal ruled that it had no right to consider if the earlier written warning had been fair or not. The Court of Appeal noted that the Employment Tribunal had been wrong on this point. It referred to the decision of Davies v Sandwell Metropolitan Borough Council in which the Court of Appeal had ruled that the Employment Tribunal is enitled to consider if an earlier disciplinary warning had been given in good faith, and that there were grounds for imposing that warning, and to consider if it was manifestly inappropriate to impose that earlier warning.   

The conclusion is that it remains proper for Employment Tribunals to consider previous warnings strictly in so far as to determine if they were issued in good faith, that there were prima facie grounds for imposing them, and that it was not manifestly inappropriate to impose the warning. However, the nature of the serious of the subsequent allegation may outweigh the need to hold an appeal hearing on the previous warning when one has been requested, but there is an understanding that once a final written warning has been given any further misconduct will often be met with dismissal- which therefore will often fall within the reasonable range of responses open to the employer. So employers can in the most serious cases proceed with disciplinary action even if an appeal on a previous warning is pending, particularly if that previous warning was given in good faith and was not manifestly inappropriate.
Employers must therefore follow their procedures fairly and thoroughly, and ensure that disciplinary decisions (including lesser warnings) and based on reasonable grounds and are appropriate.

At Hallett Employment Law Services Ltd we can help you through these procedures and give you the guidance you need in dealing with disciplinary allegations in a fair manner. If you require advice on this matter do not hesitate to contact us.            
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