When dismissing an employee on the grounds of misconduct, the fact that they have a previous warning or warnings could be relevant to the fairness of their dismissal.
The Employment Appeals Tribunal has recently provided some general guidance to Employment Tribunals as to the approach that they should take in these situations.
Employment Tribunals SHOULD:
- Take the warning into account.
- Take into account anything that may affect the validity of that warning, i.e. an internal appeal or other proceedings in which it is being challenged. The Tribunal is entitled to give those as much weight as it seems appropriate.
- Take into account the factual circumstances that have given rise to the warning. A degree of similarity may, in some instances favour a more severe penalty, just as a degree of dissimilarity may favour a less severe penalty. There may be some particular feature related to the conduct of the individual that may contextualise the earlier warning. An employer, and therefore tribunals should make sure that they give proper weight to all these matters.
- Take into account an employer’s treatment of similar matters relating to other employees.
- Bear in mind that a final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.
Employment Tribunals SHOULD NOT:
- Fall into the substitution mind set i.e. The Tribunal should not be putting its self in the shoes of the employer and deciding what it would do in the circumstances.
- Impose its own view on the reasonableness of either party’s conduct.
- Should not look for a similarity in the conduct for which the warnings were received.
- Go behind a warning i.e. hold that it should not have been issued or that some lesser category of warning should have been applied unless it was manifestly inappropriate or issued for an oblique motive.
The guidance given by the Employment Appeals Tribunal is useful although ultimately each case will turn on its own facts. We recommend that employers utilise the same checklist as the Tribunals when considering whether to rely on a previous warning and the extent of that reliance. Particularly, if there are doubts about the force of a previous warning because of an unaddressed challenge, the employer would be wise to address these before relying on that warning.
Wincanton Group plc v Stone and another UK EAT/0011/12 and Rooney v Dundee City Council UK EAT/0020/13.
Laura Kearsley is an Employment Law specialist. For more employment law advice or to comment on this article, please contact us to speak to a member of our employment law team.