The EAT has recently ruled that, when considering the fairness of a dismissal based on accumulated disciplinary warnings, a tribunal should not look behind the employer’s justification for earlier warnings unless it is satisfied that such warnings were issued in bad faith or were manifestly inappropriate.
In this case, the employee worked as a lorry driver. He was involved in a serious driving accident and was dismissed for misconduct. The employer relied on the fact that he had previously been issued with a written warning for misconduct to determine that dismissal was one of the options open to it. However, the Employment Tribunal (ET) held that the dismissal was unfair, partly on the basis that it found the previous warning to be unjust.
The EAT overturned this decision. It stated that, instead of considering whether the employer was entitled to rely upon a previous warning, the ET erroneously considered whether that warning had been justified in the first place. In doing so it had substituted its own view for that of the employer.
However, this decision does not mean that previous warnings will no longer be scrutinised by the ET when determining whether a decision to dismiss based on accumulated warnings is fair and reasonable. This is because the ET will still be required to take into account the factual circumstances which gave rise to previous warnings, and the consistency of the employer's approach. Employers should therefore ensure that a fair and consistent approach is adopted in respect of all disciplinary sanctions issued to employees, particularly when the employer is seeking to rely on these to justify a subsequent dismissal.
(Case name: Wincanton Group v Stone  UKEAT 0011_12_1110)
The full case can be found: here.