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Don't rely on unsafe previous written warnings

Posted on 26th February 2013
Case law

The EAT has held that in circumstances where an employer has relied upon a previous final written warning to dismiss an employee the Employment Tribunal, in unfair dismissal cases, must consider the appropriateness of that warning when there are grounds for thinking that the decision to issue the warning to the employee was "manifestly inappropriate."

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if there are grounds to believe a previous sanction material to the dismissal may have been "manifestly inappropriate" the tribunal should determine whether that sanction was in fact manifestly inappropriate

Simmo‚Äčnds v Milford Club UKEAT/0323/12/KN

The facts

Mr Simmonds ('Mr S') was employed as a club steward. In September 2010 he was given a final written warning following an incident where he had given his wife the club's takings to deposit in the bank whilst he waited in the car. In February 2011 the club, relying on the final written warning, dismissed Mr S after he had given employees' their staff bonuses in cash rather than giving them a bottle of wine each to the same value, as he had been instructed.

The Employment Tribunal held that the dismissal was fair but commented that, without the previous written warning, the dismissal would have been unfair. In reaching its decision the Employment Tribunal did not consider the appropriateness of the final written warning i.e. whether it was consistent with the club's disciplinary procedures.

Mr S appealed the tribunal's decision.

The decision

The Employment Appeal Tribunal allowed the appeal and concluded that, if there are grounds to believe that a previous disciplinary sanction (which was material to the dismissal) may have been "manifestly inappropriate" the tribunal should hear evidence to determine whether that sanction was in fact manifestly inappropriate.

The EAT commented that the test of whether a previous warning was "manifestly inappropriate" was a higher threshold than the test of whether a dismissal was reasonable.

In Practice

Before reaching a decision to dismiss for misconduct or capability where a previous disciplinary warning will be relied upon employers should check to make sure that the warning was justified following a fair disciplinary process and that the warning was reasonable in the circumstances. If not the employment tribunal may question the warning's validity and therefore the fairness of the decision to dismiss.

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