In a recent judgment, the EAT has issued some useful guidance as to how previous warnings should be weighed in the balance when tribunals are assessing the fairness of an employer’s decision to dismiss.
The case before the EAT involved two employees: Mr Stone and Mr Gregory, both of whom had been employed by Wincanton as drivers.
In 2009, Mr Stone and Mr Gregory both received first written warnings for refusing to obey a reasonable management instruction, namely refusing to comply with a change in working practices. Both employees appealed against the warnings; however, Mr Stone was not successful and Mr Gregory subsequently withdrew his appeal.
In 2010, during the active period of his first written warning, Mr Stone pulled out of a loading bay when the light was red, in breach of Wincanton’s disciplinary and health and safety rules. Wincanton decided to dismiss Mr Stone, rather than issue a final written warning, in light of his earlier warning which it claimed “tipped the balance” in favour of dismissal.
During the active period of Mr Gregory’s first written warning, he was disqualified from driving for being over the legal alcohol limit. Given that 95% of his duties involved driving, the driving ban rendered him unfit for duty. Taking into account the previous warning, Wincanton decided to dismiss Mr Gregory. When he asked if he might be considered for other roles as an alternative to dismissal, Wincanton assured him that they would look into this possibility, although in fact they failed to do so.
Mr Stone and Mr Gregory both brought claims for unfair dismissal.
An employment tribunal found both dismissals to be unfair. In Mr Stone’s case, it held that Wincanton had acted unreasonably in aggregating the first written warning with what should have been a final written warning, to arrive at the outcome of dismissal. The employer had purported to dismiss for “repeated misconduct” but there was no similarity of conduct between the two offences.
In Mr Gregory’s case, the tribunal found the dismissal unfair because Wincanton had given assurances that it would look into alternative employment, but subsequently had failed to do so.
The EAT dismissed the employer’s appeal in relation to Mr Gregory, but allowed the appeal in relation to Mr Stone, holding that the tribunal had erred in finding the dismissal unfair.
In relation to Mr Stone, the EAT held that the tribunal had fallen into the “substitution mindset” deciding that, had it been the employer, it would have held the first warning in abeyance rather than aggregating it with the later conduct. It also erred by imposing its own view of the reasonableness of the employee’s stance in refusing to change working practices.
Additionally, the tribunal had, quite wrongly, looked for a similarity of conduct between the first and second offences, where none in fact was required. The Acas Code of Practice does not require similarity between offences, and the terms of the warning made it clear that any further incidents of misconduct (of whatever nature) could result in further disciplinary action.
The EAT went on to give some general guidance to tribunals on how warnings should be weighed in the balance when assessing the fairness of a decision to dismiss, which will also assist employers in aggregating warnings:
1. It is not permissible for a tribunal to look behind a warning and hold that it should not have been issued or that some lesser type of warning should have been applied;
2. Tribunals may, however, take into account the nature of the offence that led to the warning. Just as a degree of similarity may, in some instances favour a more severe penalty, a degree of dissimilarity may tend the other way;
3. It is not wrong for a tribunal to take into account an employer’s treatment of similar matters relating to other employees;
4. A final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.
A copy of the EAT judgment is available here.
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