March 6, 2014

Considering final written warnings in decision to dismiss

The Claimant was put on a final written warning after an incident with another member of staff in July 2010. The warning stated that further incidents could result in dismissal. The Claimant’s appeal against the warning was lodged out of time and the employer refused to hear it. Three months later the Claimant was found arguing with a manager; this was investigated and a case to answer was found. At the disciplinary hearing the Claimant was found culpable, both of aggressive behaviour during the argument with the manager and in relation to misuse of her discount store card.

She issued proceedings for unfair dismissal, and one of the points she argued was that the members of staff who, respectively, carried out the investigation, and chaired the disciplinary hearing, should not have been involved in the dismissal proceedings because they had been involved in the hearing which had led to her final written warning.

In dismissing the Claimant’s claims, the Tribunal stated that it had no jurisdiction to decide whether or not the final written warning was of itself fair or unfair. It concluded that the Claimant would have been dismissed even if the two previously involved employees had not conducted the investigation  and hearing. The Tribunal commented that it would have been better practice if other individuals had been used but the Claimant would have been dismissed anyway, not only because she admitted misuse of her store card but also because of the final written warning. Furthermore it held that the appeal hearing and later extensive investigation would have cured any possible defects in the earlier procedure. The EAT dismissed her appeal but she went up to the Court of Appeal; which held in favour of the Tribunal’s original decision. The Court of Appeal did however say that the Tribunal was wrong to say it did not have the jurisdiction to consider the earlier final warning, the essential factors being that the Tribunal should be satisfied the warning was given in good faith and that there were, at least on the face of it, grounds for imposing the warning.

In any event however the Tribunal found that the Claimant could have been dismissed for gross misconduct absent the final warning; but the Court of Appeal’s consideration of the issue of the earlier warning endorsed the Tribunal’s view of the reasonableness of the warning.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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