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11 October 2012
Employment Appeal Tribunal (EAT)
Langstaff J, Mr B Beynon and Mrs M McArthur
Earlier warnings can be taken into account when deciding whether to dismiss for misconduct even if the misconduct which led to the earlier warning is different from that which led to dismissal; and the fact that a tribunal may not think the warning was justified does not make the subsequent dismissal unfair.
S was dismissed for pulling out of a loading bay across a red light with the trailer open, injuring a colleague. He already had a warning for refusing to drive from another depot. He unsuccessfully appealed against that warning, saying his contract entitled him to refuse. There was also a collective grievance and litigation about the requirement for drivers to drive from depots other than their usual ones.
A tribunal held S's dismissal was unfair. First, there was no similarity between the circumstances of the first warning (a policy dispute) and those of the second (dangerously pulling out of a loading bay); and secondly, the employer should not have taken account of the earlier warnings when their validity might be undermined by the litigation.
The EAT overruled the tribunal. The earlier warning should not be ignored just because the circumstances were different from those that led to dismissal; and unless the warning was issued in bad faith, tribunals should not look behind the warning - in the sense of enquiring whether it was justified.
The EAT summarized as follows:
1. unless a tribunal concludes that a warning was issued in bad faith or was manifestly inappropriate, that warning will be treated as valid and should be taken into account by a tribunal;
2. the tribunal should not then go behind the warning, for example by considering whether some lesser category of warning was appropriate;
3. but the factual circumstances behind an earlier warning may be relevant, because a degree of similarity will point towards a more severe penalty;
4. a tribunal should also take into account the fact that other proceedings (eg an internal appeal or, as in this case, other litigation) may affect the validity of the warning, but that does not mean that the warning should be ignored;
5. any misconduct of whatever nature occurring after a final written warning will usually result in dismissal, and for that not to happen would be exceptional.
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