Tribunal Wrong to Look Behind Previous Disciplinary Warning


3 mins

Posted on 11 Dec 2012

A tribunal was wrong to look behind a previous disciplinary which an employer relied on to dismiss an employee.

In Wincanton Group v Stone, S was dismissed for misconduct after driving through a red light at work which resulted in an accident.  He had a previous first written warning for failing to comply with a reasonable instruction. That warning was disputed and whether it was justified depended on the correct interpretation of the contract and was the subject of litigation.  The employer would have issued a final written warning, rather than dismissing S, had it not been for the first warning.

The tribunal found the dismissal unfair.  It decided that the employer had acted unreasonably in totting up the warnings, given the circumstances of the first warning i.e. that it was in dispute.  In addition the employer should not have dismissed for repeated misconduct when the offences were not similar.

The EAT overruled the tribunal.  The tribunal had looked behind the warning to see if it was justified and should not have done so.  It had also been wrong to suggest that the previous warning should have been ignored and that the employer should not have relied on it to dismiss as the offences were not similar.

The EAT gave guidance on the correct approach. The overall question is whether the decision to dismiss was reasonable.  A tribunal must view a warning as valid unless it was not issued in good faith or there were no prima facie grounds for it.  Where a warning is valid a tribunal should:

  • take it into account;
  • take account of any proceedings that may affect its validity (usually an internal appeal) and consider what weight the employer gave to any challenge before dismissing;
  • take account of the factual circumstances that gave rise to it e.g. considering whether the conduct giving rise to the earlier warning and the ultimate dismissal were similar or not.  Similarity may tend in favour of a more severe penalty and dissimilarity may, in appropriate circumstances, tend the other way; and
  • avoid "going behind" the earlier warning by considering whether it should have been issued.. 

It also emphasised that a final written warning always implies that any further misconduct of any nature will be met with dismissal, unless the terms of the employment contract state otherwise.

This decision provides helpful guidance for employers seeking to rely on previous disputed disciplinary warnings.  Employers are not obliged to ignore a disputed disciplinary warning, although the fact that it is disputed is a factor that it must take into account when deciding whether it is reasonable to dismiss.  The comments about the effect of a final written warning are also useful and employers may wish to revisit their disciplinary policies to ensure that they allow for dismissal if any further act of misconduct occurs, and not just where a similar act of misconduct occurs.

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