How to deal with previous written warnings when considering dismissal

11 December 2012

In Wincanton v Stone and Gregory the Employment Appeal Tribunal (EAT) considered the cases of two employees, both drivers, who had both been given first written warnings for failing to obey ‘reasonable management instruction’. While those warnings were still ‘live’, one caused an accident in which a co-worker was injured and the other was disqualified for drink-driving. Both were dismissed and, in both cases, it was the first written warning that ‘tipped the balance’ on the decision to dismiss.

Were the dismissals fair?

The Employment Tribunal thought that the employer had been wrong to take the first warnings into account as they related to a different type of misconduct and the circumstances were not clear-cut.

The EAT disagreed and said the Employment Tribunal was wrong to ‘go behind’ the earlier written warnings. It could not do so, unless it was suggested that they were issued in bad faith or were manifestly inappropriate.

The Employment Tribunal should have taken the warnings into account, and the fact that they had been challenged but were still extant, when deciding whether the employer had been reasonable in treating the subsequent misconduct as a reason for dismissal. The first case was remitted for re-hearing.

In the second case, the dismissal was unfair but for a different reason.
The employer had agreed to try and find the employee alternative (non-driving) employment before dismissing him, but hadn’t done so.

Points to note

• When considering whether to dismiss for misconduct, employers should follow the EAT’s guidance and take into account any valid previous warning. If an internal appeal against the previous warning is pending, the employer may give that as much weight as seems appropriate. A degree of similarity with the current offence may, in some instances favour a more severe penalty now, but a notable degree of dissimilarity may indicate that previous unrelated warnings should be ignored.

• The ACAS Code of Practice on disciplinary and grievance procedures does not suggest two successive acts of misconduct need to relate to similar issues to justify an escalation in the sanction.  Misconduct (as in the Wincanton case) may take many forms. However, employers should check whether the earlier warning refers to repetition of the same offence or not and consider any implications.

• On a separate point, in the second case, the EAT doubted whether there was a duty on an employer to try to redeploy an employee, where it had become illegal for him to carry on with his current job, even though the employer in this case had agreed to do so.

Other cases in our December 2012 UK employment Law update:

> TUPE: Court of Appeal on service provision change
> Emails are not automatically company property
> No duty not to dismiss while employee receives PHI benefits