Trye (“the Claimant”) was issued with a final written warning for various acts of misconduct which included failure to follow company procedures. The Claimant then committed another act of misconduct resulting in her dismissal, following a disciplinary hearing, for unauthorised absence and failing to follow the correct procedure for reporting absence.
The Employment tribunal dismissed the claim and found that the dismissal was logical and understandable. On appeal to the EAT the Claimant argued that the later conduct was not serious enough to warrant dismissal as if no final warning had been in place, dismissal would not have been a reasonable response.
The question for the EAT was whether employers could take into account prior disciplinary warnings when determining the sanction for misconduct and whether the misconduct has to be related to that disciplinary warning.
The EAT dismissed the appeal stating that where a final written warning is active, dismissal following a further act of misconduct could be a reasonable response. The judge went further in saying that it would be exceptional circumstances that a further act of misconduct did not justify dismissal.
The judge also considered whether an employer could take an expired warning into consideration and found that employers can still take this into account when determining whether to dismiss an employee, however they cannot rely just on the previous warning, the conduct complained of must have justified dismissal in any event.
This decision has clarified the approach the tribunals will take in determining whether a dismissal is unfair or not when a prior warning is taken into consideration. The later conduct does not have to amount to a sufficient reason for dismissal and the prior warning does not have to be related to the current incident.
However employers should be wary if dismissing an employee in these circumstances without notice as this could leave them open to a claim of wrongful dismissal given that there is no gross misconduct.
For further information on any of the above and the impact on you please contact the Devonshires Employment Team.