17 December 2012

To dismiss or not to dismiss - guidance for accumulative warnings

To dismiss or not to dismiss - guidance for accumulative warnings

It is common practice for disciplinary warnings to remain active in an employee's personnel file for a period of 12 months. Any further warnings during this period may lead to the higher sanction of dismissal depending on the type of misconduct committed.  

The question which arises for employers is how to deal with an employee who has an allegation of misconduct held against them in the light that they have had an earlier written warning. The Employment Appeals Tribunal (EAT) in Wincanton Group v Stone have provided guidance for tribunals dealing with this issue.

Background

Mr Stone, a lorry driver, was dismissed from the company following a serious driving accident, on the back of a written warning which was for a refusal to obey a lawful management order.

The management (both at the disciplinary and appeal hearing) agreed that had Mr Stone had a clean disciplinary record than the second incident would have warranted a final written warning.

Mr Stone claimed unfair dismissal in the Employment Tribunal (ET) on the basis that the two acts of misconduct were not the same or similar in nature. The former act should not have been considered in the second disciplinary action.

The ET decision

The ET upheld Mr Stone's claim for unfair dismissal on the basis that dismissal was not within the band of reasonable responses to Mr Stone's conduct.

In the ET's reasoning, they stated that the totting-up process should not have taken place as the first warning had been appealed and was the subject of a collective grievance and litigation. It would be prudent for a reasonable employer, given Mr Stone's length of service, to have waited for the outcome of the grievance and litigation relating to the first warning. The ET did not draw any conclusions as to whether or not the first written warning was fair.

The EAT overturned the ET's finding of unfair dismissal and remitted the case for a re-hearing. They did however set out guidance for tribunals dealing with dismissals involving accumulated warnings.

The overall question is the reasonableness of the employer's act of treating conduct as a reason for dismissal. Tribunals should:

1. Take into account the fact there was an earlier warning.
2. Take into account any proceedings that may affect the validity of a warning (usually an internal appeal) and consider what weight the employer gave to any challenge before dismissing and

Avoid "going behind" an earlier warning by considering its validity, unless satisfied that to do so is appropriate.

Tribunals will not be considered "going behind" an earlier warning by taking account of the factual circumstances that gave rise to it, e.g. considering whether the types of conduct giving rise to an earlier warning and ultimate dismissal were similar or not. Further they may consider the particular features of a situation, as well as the consistency of the employer's approach.

ConclusionFortunately the well-established principle that employers can continue to consider the employee's previous live warnings during any further disciplinary proceedings is retained. However, employers in similar situations as the Wincanton Group, should consider adjourning decisions until internal appeals have been concluded, as tribunals can look behind the earlier warning when satisfied that it was issued in bad faith or was manifestly inappropriate.

The EAT decision

The EAT overturned the ET’s finding of unfair dismissal and remitted the case for a re-hearing. They did however set out guidance for tribunals dealing with dismissals involving accumulated warnings.

1. The overall question is the reasonableness of the employer’s act of treating conduct as a reason for dismissal. Tribunals should:Take into account the fact there was an earlier warning.
2. Take into account any proceedings that may affect the validity of a warning (usually an internal appeal) and consider what weight the employer gave to any challenge before dismissing and
3. Avoid "going behind" an earlier warning by considering its validity, unless satisfied that to do so is appropriate.

Tribunals will not be considered "going behind" an earlier warning by taking account of the factual circumstances that gave rise to it, e.g. considering whether the types of conduct giving rise to an earlier warning and ultimate dismissal were similar or not. Further they may consider the particular features of a situation, as well as the consistency of the employer’s approach.

Fortunately the well-established principle that employers can continue to consider the employee’s previous live warnings during any further disciplinary proceedings is retained. However, employers in similar situations as the Wincanton Group, should consider adjourning decisions until internal appeals have been concluded, as tribunals can look behind the earlier warning when satisfied that it was issued in bad faith or was manifestly inappropriate.