17 March 2014

Unfair dismissal and prior warnings

The use of warnings as a disciplinary tool by employers and the litigation that can sometimes result from this can be a rather confusing area of employment law. This may well be due to the historic alterations in the relevant law.

Prior to April 2009 there was a statutory three-stage disciplinary procedure in place, which while relatively clear and understandable, was overly rigid and so was replaced by the current ACAS Code of Practice. This then left employers to their own devices in putting disciplinary policies in place, including how to stage warnings leading towards the dismissal of an employee.

In the recent Employment Appeals Tribunal ("EAT") case of Rooney v Dundee City Council, the question was considered as to whether it is within the range of reasonable responses for an employer to dismiss an employee taking into account a final written warning when an appeal against it remained outstanding and without hearing evidence regarding the imposition of that warning.

The Claimant, Mrs Rooney, was a Cashier Supervisor at the Respondent Council. Mrs Rooney had a final written warning for her failure to follow a reasonable management instruction, which she appealed. The appeal hearing, while scheduled, was rearranged several times but ultimately never heard.

Subsequently, a further disciplinary issue arose, stated as being for inappropriate conduct. Mrs Rooney's previous appeal against the charge of failure to follow instructions was of course still active when this second allegation surfaced.

The Council's disciplinary manager upheld the latter inappropriate conduct charge, which, taken alone, would normally only have amounted to a final written warning. This charge however did mirror aspects of the first written warning, meaning that when considered together the incidents justified dismissal.

Mrs Rooney then appealed the decision to dismiss her. As part of that process the facts of the first warning were considered. The Council took the view that the first warning was warranted and so there was no compelling reason not to factor it into the overall decision to dismiss Mrs Rooney; her dismissal was therefore upheld.

In considering Mrs Rooney's appeal from the tribunal of first instance, the EAT was referred to the guidance given in Wincanton Group v Stone & Gregory. This dictated that when considering the reasonableness of a dismissal where there is a valid warning, the tribunal should take into account the facts of the warning including whether it had been appealed. The action taken by the employer should be considered in conjunction with section 98(4) of the Employment Rights Act 1996 (whether the decision to dismiss was reasonable in the circumstances) and that a final written warning implies that any future misconduct will result in dismissal.

The EAT upheld the original tribunal's decision that the dismissal was fair in the circumstances and that the it had applied the correct test, specifically whether dismissal was within the range of reasonable responses an employer might take. The original tribunal was aware that Mrs Rooney's first warning was under appeal at the time of dismissal for the second incident and had correctly considered the Wincanton guidance.

Conclusion
The moral of the story for employers is to ensure that the reasonableness of a dismissal is in line with the relevant guidance. It is worth noting that in this case the initial Employment Judge did not agree with the tack taken by the employer; however was mindful not to substitute his own view for that of the employer.