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Tribunal not entitled to look behind earlier warning in unfair dismissal case

04 January 2017 #Employment

In Perry’s Motor Sales Ltd v Edwards, the Claimant, a car dealership manager was dismissed for misconduct. The Claimant had previously received a final written warning for similar conduct which related to tampering with company paperwork. The Claimant did not appeal this warning, nor did he challenge its validity in his unfair dismissal claim.

The employment tribunal held that the Claimant’s dismissal was unfair as it fell outside the band of reasonable responses. In reaching this decision, the tribunal was concerned that the basis for the Claimant’s prior warning was unclear and fell outside of the band of reasonable responses. The tribunal was also influenced by the Claimant’s lack of training and requests for help, which were reportedly ignored by the company.

The EAT allowed the company’s appeal and agreed that the tribunal had substituted its own view of that of a reasonable employer. The Claimant’s earlier warning and alleged lack of training were two issues which had not been challenged by the Claimant and were therefore not in issue. Even if the Claimant’s warning was in issue in the proceedings, the tribunal had applied the wrong legal test. It was not for the tribunal to consider whether the warning fell within the band of reasonable responses, such a test is only applied when assessing the fairness of dismissals, not warnings. The EAT explained that tribunals should only consider the validity of a prior warning if it was made in bad faith or manifestly inappropriate and ordered for the case to be remitted to a fresh tribunal.

A takeaway point arising from this case is to use clear wording in written warnings. Employers are sometimes tempted to include vague descriptions of misconduct when drafting a warning in the hope that it will capture a wide category of future misconduct. This approach may lead to the warning being scrutinised by a tribunal and found invalid so please speak to someone in our employment team if you need help with drafting a warning.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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