Employer could rely on warning under appeal to dismiss employee

Gillian Cumming
20th Jan 2014

The Employment Appeal Tribunal (EAT) has decided that an employer acted reasonably in taking into account a final written warning that was still under appeal when dismissing an employee for a further breach of discipline.


In this case, the claimant had received a final written warning for failure to follow instructions, which was to stay on her employment record for a period of 15 months. The claimant appealed against the final written warning but for various reasons a number of scheduled appeal hearings did not go ahead.


Shortly before the warning was due to expire, a further incident occurred where the claimant was again alleged not to have followed instructions given to her. The claimant was dismissed for this further breach of discipline. In reaching the decision to dismiss, the disciplining officer had taken into account the previous final written warning in the knowledge that the claimant’s appeal had not been determined.


The Employment Tribunal (ET) had found that the dismissal was not unfair, on the basis that it was open to a reasonable employer not to determine the appeal against the warning before reaching the decision to dismiss in relation to the second breach of discipline. The claimant appealed, effectively arguing that the ET had not held the employer to a high enough standard of reasonableness in relation to the decision to take the final written warning into account before her internal appeal had been disposed of.


In upholding the decision of the ET, the EAT supported the Employment Judge’s reasoning that while he may not have adopted the employer’s approach himself in the same circumstances, it could not be said that the decision to take the final written warning into account was outside the band of reasonable responses.


This case is a good reminder of the fact that the band of reasonable responses test applies not only to the reasonableness of the disciplinary penalty imposed by an employer, but also to the procedural decisions the employer makes. However, employers would be well advised not to assume that all warnings that remain subject to appeal can be relied on in this way, particularly where it might be argued that the initial warning was given for an oblique motive or was manifestly inappropriate.

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