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Relying on previous warnings that have been appealed

Posted on 16th January 2014
Case law

The EAT has held that an employer can take into account a previous warning when dismissing even if an appeal against that warning is outstanding.

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an employer is not ‘bound to refrain from dismissal until [an outstanding] appeal is decided’

Rooney v Dundee City Council 2013

The facts

Mrs R was employed as a cashier supervisor. In September 2010 she was given a final written warning. Mrs R had failed to follow the instructions of a senior manager. Mrs R appealed. The appeal was never heard for various reasons and Mrs R did not withdraw it.

A second incident took place in December 2011, including a further failure to follow instructions, an internal procedure and inappropriate behaviour towards a colleague. Mrs R was dismissed. The Council took the view the second incident did not justify dismissal itself but, taking into account the final written warning, dismissal was appropriate. The Council did consider that the appeal against the final written warning was outstanding. It took the decision to carry out a review of the circumstances in which it was issued privately. 

Mrs R brought a claim of unfair dismissal. 

The decision

Both the employment tribunal and Employment Appeal Tribunal concluded that the dismissal was fair.

The employment tribunal decided that the actions of the Council were within the range of reasonable responses. The Council had taken into account that the final written warning existed. It had also taken into account that the appeal against it had not been heard and the Council undertook its own review of it (in private).

The Employment Judge commented he would not have proceeded in the same way - he would have heard the appeal against the final written warning. This did not mean that the dismissal was unfair.

Both the employment tribunal and EAT felt that there was no evidence to indicate that the final written warning was ‘manifestly inappropriate or in any way invalid’.  If it was further investigation would have been required.  

The EAT noted that an employer is not ‘bound to refrain from dismissal until [an outstanding] appeal is decided’. 

In practice

This is an issue that comes up relatively frequently. Remember Mr Simmonds?

Where an employer is relying on a pre-existing warning which has been appealed but that appeal is not completed, employers need to be cautious. They must always consider if there is any possibility the warning was ‘manifestly inappropriate’. If not there is no single correct approach. The Employment Judge emphasised that different approaches do not necessarily mean a dismissal will be unfair. Best practice must surely be, in circumstances such as this case, to carry out the appeal before making any decision on the existing allegations.

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