Is it reasonable to dismiss taking into account a previous final written warning for which the appeal hearing has not yet held?

In the case of Susan Rooney –v- Dundee City Council, the Employment Tribunal held that it was within the reasonable band of responses for the employer to do this.  The Employment Appeal Tribunal (UKEATS/0020/13), in considering the Tribunal’s decision, has upheld this decision.

Background

Ms Rooney was a cashier supervisor for the Council.  She received a final written warning in September 2010 for failing to following instructions.  This warning was to remain on her record for 15 months. Whilst she appealed against this, for various reasons the appeal hearing did not take place. In December 2012 Ms R failed again to follow instructions, which led to disciplinary proceedings.

The disciplinary officer conducting the 2^nd hearing was aware that Ms R had a live final written warning and that her appeal against this was outstanding.  The disciplinary officer concluded that, on its own the latest misconduct would not have resulted in her dismissal, but that because of her live final written warning it would be appropriate to take this into account and to dismiss.

Ms R appealed against her dismissal.  The appeal officer considered the facts surrounding the final written warning, although she did this in private.  She concluded that the final written warning was justified, and also upheld the decision to dismiss.

Employment Tribunal’s consideration

When Ms R brought a claim of unfair dismissal, the Employment Tribunal found against her. 

The Employment Judge did however note that the decision to dismiss had been “harsh” and that many employers might not have dismissed an employee in these circumstances.  He also noted that an appeal hearing in relation to the final written warning could have been convened without undue delay once Ms R was subject to further disciplinary action.  Nonetheless, the Tribunal concluded that the decision not to hear the appeal was within the band of reasonable responses open to the employer.  As such the Tribunal concluded that Mr R’s dismissal had been fair.

Employment Appeal Tribunal’s decision

When this went before the EAT, it had to consider whether the Tribunal had erred.  It found that the Tribunal had applied the correct test and had considered all relevant facts.  The EAT therefore upheld the original decision of fair dismissal.

Comments

Employers considering dismissal for misconduct where there is a live final warning on the employee’s record, should:

• ensure that the first warning was appropriate
• if the employee has challenged that warning, bear this in mind in reaching a decision.  Ideally ensure that the appeal hearing has been held
• consider whether the first warning was for a similar matter as the current misconduct.