Case law update:Is it ever legitimate to ‘look behind’ earlier disciplinary warnings?

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The EAT has set out some guiding principles on how an employer should deal with an allegation of misconduct, when the employee in question has already received an earlier disciplinary warning.

What happened in this particular case?

Mr Stone, a lorry driver with ten years’ service, was dismissed for misconduct after he pulled out of a loading bay when the light was red rather than green, in breach of his employer’s disciplinary and health and safety rules. A colleague was injured in the incident.

On its own, this would normally have attracted a final written warning. However, Mr Stone’s employer dismissed him – it was the existence of an earlier first written warning (issued for refusing to obey a reasonable management instruction regarding a change in working practices) which was the factor which tipped the balance towards his dismissal.

An employment tribunal found Mr Stone’s dismissal unfair. It reached this conclusion because:

  • the employer had acted unreasonably in aggregating the first written warning with what should have been a final written warning, to arrive at dismissal;
  • the circumstances surrounding the first written warning should have been taken into account (this was essentially a difference of opinion between employee and employer as to a change to its working practices); and
  • the employee was dismissed for repeated misconduct but the tribunal said this could not be right as there was no similarity between the first and second acts of misconduct.

The employer appealed to the Employment Appeal Tribunal which overturned the finding of unfair dismissal and sent the matter back to be reheard by a fresh employment tribunal. The EAT held that the tribunal had erred in law in several respects:

  • it had put itself in the employer’s shoes and allowed itself to be influenced by what it would have done had it been the employer;
  • it had looked for similar conduct between the first and second disciplinary offences (the ACAS Code of Practice does not suggest that similarity is required between offences where the later misconduct is not in itself sufficient to justify dismissal); and
  • crucially, having accepted the validity of the first warning, it was wrong to then ‘look behind’ it to see if it was justified.

General (and helpful) guidance issued by the EAT

Of most interest to our member companies, the EAT set out some useful, general, guidance in these types of cases, where the relevance of an earlier warning must be considered. We summarise this below.

  • The focus should be on the reasonableness of the employer’s decision to treat misconduct as the reason for dismissal.
  • If an earlier warning was issued in good faith and there were apparent grounds for making it, it should be viewed as valid, and should be taken into account.
  • An employment tribunal and an employer should take any proceedings into account that might affect the validity of that warning (often an internal appeal, or possibly a grievance or litigation).
  • It is not permissible for an employment tribunal to ‘go behind’ a valid warning to hold that it should not have been issued/a less serious warning should have been imposed.
  • However, taking into account the factual circumstances giving rise to a warning is not ‘going behind’ a warning. One should consider the degree of similarity between the two acts of misconduct - similarity between them might justify a more severe penalty for the second act. Equally, where those acts are not similar, this might justify a less severe penalty. Where a particular feature related to the conduct or the individual contextualises the earlier warning, proper value should be attributed to that.
  • A final written warning always implies, unless the terms of the contract state something different, that any further misconduct of whatever nature will be met with dismissal, unless the circumstances are exceptional.
  • It is not wrong to take into account an employer’s treatment of similar matters relating to other employees.

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