Recent case law has confirmed the correct approach a Tribunal should take in relation to previous warnings when assessing the fairness of a dismissal.
In the case of Rooney v Dundee City Council, the Claimant appealed against a final written warning for failing to follow an instruction. Before the appeal was heard (and whilst the final written warning was still “live”), a separate disciplinary issue arose relating to inappropriate behaviour. The disciplining officer found that since the latest allegation arose from similar circumstances to the first allegation, together they justified dismissal. On appeal, the circumstances of the final written warning were considered and it was found that the warning was justified. The dismissal was therefore upheld.
The EAT upheld a Tribunal’s decision that the dismissal was fair. It held that an Employment Tribunal can decide that it is within the range of reasonable responses for an employer to dismiss an employee, taking into account a final written warning, even where an appeal against that warning remained outstanding.
The EAT considered that the Tribunal had correctly referred to the guidance given in Wincanton Group v Stone & Gregory. In Wincanton it was decided that where there is a valid warning, the Tribunal should take into account the fact of the warning, including whether there had been an internal appeal. It was not, however, required to look ‘behind’ the warning to see if it was justified. Accordingly, it was held in Rooney that the dismissal was fair as the Tribunal had been made aware that the final written warning was under appeal and the circumstances of the final written warning had been reviewed.
It is good practice (and in line with the ACAS Code) where misconduct or poor performance is established, to dismiss an employee only if there has been a written warning and a final written warning. A written warning should set out the nature of the misconduct or poor performance, the improvement required, a timescale for improvement and the consequences of failing to improve.
The fact that a final written warning is in place will be taken into account if a dispute should arise; however, a Tribunal is not required to consider the reasoning behind the imposition of the warning. Therefore, it is in the employer’s best interests to have followed a fair warning procedure. Further, although employers are encouraged to hear any appeal against a warning without delay, the cases referred to above confirm that an outstanding appeal will not affect a Tribunal’s ability to find that a dismissal was fair.
However, it is worth noting that, as in the case of Wincanton, there has not yet been a case heard in the EAT in which it was fair for the employer to dismiss whilst the employee is subject to a “live” warning of less severity than a final written warning.