Case update (2): Unfair dismissal – You’ve been warned…

unfair-dismissal-250Summary:    Can an employer fairly dismiss an employee as a result of taking into account a final written warning – even where an appeal against that first warning remains outstanding?

Yes, says the EAT in Rooney v Dundee City Council, available here.

Facts:   Mrs Rooney was employed by the Council as a cashier supervisor. In September 2010 she was given a final written warning following her failure to follow an express instruction from a senior employee: Mrs Rooney paid in a large cheque from a member of the public despite being told to wait for money laundering clearance. The final warning was to stay on her record for 15 months.  Mrs Rooney appealed against that decision. However, the appeal hearing did not take place due to unavailability/severe weather, and she never asked for it to be re-arranged.

A second incident took place in December 2011 (whilst the previous final written warning was still ‘live’).  This incident included a further failure to follow instructions and inappropriate behaviour towards a colleague. After a disciplinary process Mrs Rooney was dismissed. The Council took the view the second incident did not justify dismissal itself but, taking into account the existence of the ‘live’ final written warning, it felt that dismissal was appropriate. The Council also took into account the fact that the appeal against the final written warning was outstanding, and held a private review of the basis on which the warning had been issued, to satisfy itself as to the appropriateness of its imposition.

Mrs Rooney brought a claim of unfair dismissal. The Tribunal dismissed Mrs Rooney’s claim and held that her dismissal was fair.  The EAT upheld this decision on the basis that:

  • the Council’s process and its decision to dismiss were both within the range of reasonable responses;
  • the Council had taken into account that the final written warning existed; and
  • the Council had also taken into account that the appeal against it had not been heard, so undertook its own review of it (in private).

Both the Tribunal and EAT considered the guidance set out by the EAT in Wincanton Group v Stone & another (see our December 2012 Newsflash, You’ve been warned). Wincanton was a case where the employer had taken into account a previous warning which was not in respect of similar conduct and was the subject of an on-going dispute. Taking this guidance into account, the EAT considered that there was no evidence to indicate that the final written warning was ‘manifestly inappropriate or in any way invalid’.  (If the warning had been, then further investigation would have been required.)  The EAT further held that an employer is not required to refrain from a dismissal until an earlier, outstanding appeal relating to a previous warning is decided.

In summary, then, the fact that the employee had appealed against the final written warning and that appeal process had then been left unhelpfully incomplete and unresolved by her and the employer did not render it unfair for the employer to have later relied upon the existence of the warning in order to help justify the dismissal.

Implications: This judgment provides a useful confirmation and reminder of the guidance for how to approach a misconduct dismissal where there has been an earlier warning that was earlier set out in by the EAT in Wincanton.  That guidance is:

  • the overall question is the reasonableness of the employer’s act of treating conduct as a reason for dismissal. Where an earlier warning was issued ‘in bad faith’ or was ‘manifestly inappropriate’, it should not be taken into account subsequently;
  • the Tribunal should take into account previous valid warnings, but bear in mind any current proceedings that may affect its validity (usually an internal appeal). The Tribunal should consider what weight the employer gave to that challenge before dismissing the employee;
  • the Tribunal should not ‘go behind’ a valid warning, to hold that some lesser category of warning should have been applied. However, it can take into account whether the type(s) of conduct which gave rise to the warning and the dismissal were similar and whether the employer’s approach has been consistent. A degree of similarity may favour a more severe subsequent penalty, particularly if this is consistent with how the employer has previously treated employees; and
  • a final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the circumstances are exceptional.

The judgment is a reminder to employees that if they wish to appeal then they hold some responsibility for continuing to pursue their appeal, including insisting on another date for the appeal hearing if the agreed date has to be abandoned.

It is also a helpful case for employers to bear in mind when making disciplinary decisions. The key is always to remember that disciplinary procedures should be used fairly and consistently, and employees should know how long any warning will stay live (and therefore potentially relevant to any later disciplinary decision).