Previous disciplinary record not relevant to fairness of dismissal

David Reid
27th Sep 2012

The EAT has held that previous disciplinary records not relevant to fairness of dismissal where not relied upon by employer in decision to dismiss.

Employment equality act

The EAT has held that when determining whether a dismissal is fair, consideration should not be given to the employee’s previous disciplinary record if this did not expressly form part of the employer’s reasoning for the dismissal.


In this case, at an internal appeal hearing, the employer upheld its decision to dismiss an employee by expressly relying on one allegation of gross misconduct. The tribunal found that although it would not have characterised the employee’s actions as gross misconduct, the decision to dismiss for this one matter was within the range of reasonable responses because the employee also had previous warnings on his file.


The EAT found this approach was incorrect because the previous warnings had not been taken into account by the employer when reaching its decision to dismiss. This could be demonstrated by the fact that:


  1. The previous warnings had not been referred to in the dismissal letter or in the appeal decision letter as amounting to a reason for the dismissal.
  2. The dismissing officer made no reference in his evidence to his having had anything else in his mind at the time other than the single incident of gross misconduct when deciding to dismiss.
  3. The employer’s defence to the claim made no mention of these earlier warnings on the employee’s file.
  4. The earlier matters which had led to the previous warnings related to capability and not to conduct.


This case demonstrates the importance of ensuring that reasons for dismissal are expressed fully and clearly enough to ensure that any subsequent tribunal claim can be defended on all relevant bases. This is where employers can really benefit from bespoke advice and support from employment law specialists.


(Case name: Nejjary v Aramark Ltd UKEAT/0054/12/CEA) The full case can be found here.

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