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Dismissal following formal warnings
It is very difficult to win an unfair dismissal claim in the tribunal where the dismissal was triggered by a live formal warning, whether the last of a series of warnings or one Final Warning. The leading case is Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139:
Mrs Davies was a science teacher accused of misconduct. At her disciplinary hearing that resulted in a Final Warning, the school relied on statements that Davies later discovered might have been the product of collusion between pupils and parents to get her sacked, since some of the children who gave statements had not been in the lesson complained of. The employer refused to adjourn the hearing to investigate her allegations that the evidence was flawed, and at the end of the hearing, it issued a 24 month Final Warning. Davies did not appeal the Warning, fearing that her employer might use the appeal hearing to convert the Warning into a dismissal.
She was later dismissed following a further incident of misconduct during the life of the Final Warning. The Court of Appeal said that the dismissal was fair. In reaching its decision, it examined the law surrounding dismissals triggered by a live warning and confirmed that tribunals should apply the normal “reasonableness” test in section 98(4) ERA 96. In other words, the tribunal should look at all the circumstances including the live warning and the conduct that eventually triggers the dismissal, to decide whether the dismissal is fair. The tribunal is not allowed to re-examine the facts behind any earlier warning to decide whether or not it was fair to issue that warning, unless there is evidence that the warning was issued in bad faith or for an improper motive or was manifestly inappropriate. This is a very high hurdle, as the unsuccessful outcome of Davies’ own case demonstrates.
Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139
A more encouraging case is Simmonds v Milford Club [2012/ UKEAT/0323/12/0612:
Mr Simmonds, a Club Steward with ten years’ service, was issued a Final Warning for allowing his wife to carry the day’s takings into the bank when he couldn’t find anywhere to park. The employer’s justification for the Warning was that third parties were uninsured to handle takings. Simmonds lost his internal appeal. The misconduct that later triggered his dismissal following the Final Warning was giving each of six members of staff a £15 cash Christmas bonus when his manager had told him to give each a £15 bottle of wine.
The EAT overturned the tribunal’s decision that Simmonds’ dismissal was fair, finding evidence to suggest that the Final Warning was manifestly inappropriate. In particular, there was no induction, training or written procedure in place on how to bank takings. The decision to issue a Final Warning was also inconsistent with the employer’s own disciplinary procedure. The case was sent back to the tribunal to decide again.
Simmonds v Milford Club [2012] UKEAT/0323/12/0612
Here are some key points to note when supporting a member facing dismissal following a series of warnings or one Final Warning.
• As with any dismissal, an employer must follow the Acas Code on Discipline and Grievance and associated guidance.
• The Acas Code contemplates at least a First Written Warning, followed by a Final Written Warning, with the possibility of moving straight to a Final Warning where misconduct is sufficiently serious. There must be a right of appeal at each stage.
• If an employer regards a particular category of misconduct as sufficiently serious to move straight to a Final Warning, this should be explained clearly in the employer’s procedures and communicated to employees, for example through induction. Otherwise, any subsequent dismissal could be unfair.
• The fairness of a dismissal triggered by a live Final Warning will depend on the overall reasonableness of the employer’s decision, taking into account all the circumstances, including the fact of the Warning, and applying the “band of reasonable responses” test.
• Tribunals stress that in practice, further misconduct during the life of a Final Warning is likely to result in a fair dismissal, and that any other result would be an exception.
• There is no rule that only Warnings for similar conduct can be taken into account when deciding whether to dismiss.
• There is no rule that only serious misconduct can trigger a dismissal following a Final Warning.
• An employer can take into account a Warning when deciding whether to dismiss even if it is under appeal, but the fact of the appeal should affect the weight the employer places on it.
• A tribunal is not allowed to “go behind” an earlier Warning and examine the underlying circumstances behind it to decide whether or not it should have been issued in the first place, unless there is evidence to suggest that it was issued in bad faith or for an improper motive or was manifestly inappropriate. This is a strict test which shows the importance of challenging the earlier warning at the time of issue.
• an employer should always take into account how it treats other employees in a similar situation.