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Case law: court confirms when employers can take employee's previous warnings into account when dismissing

Employers will welcome guidance on when they should take into account the circumstances in which an employee's previous warnings were given when deciding whether to dismiss.

Legal Alert

This update was published in Legal Alert - February 2014

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

The Employment Appeal Tribunal gave the guidance in a recent ruling in which an employer had given an employee a final written warning following an incident. She appealed but never pursued this to a final hearing.

Following a second, similar incident, she was disciplined for inappropriate behaviour. If the first incident had not occurred, she would only have received a final written warning. However, the employer took the two incidents together and dismissed her. She claimed unfair dismissal.

The Employment Appeal Tribunal (EAT) reviewed the circumstances in which the first written warning was issued and decided the warning was justified and there was no reason to ignore it. It considered guidance in a previous case setting out how tribunals should deal with accumulated warnings: that the overall issue is whether it was reasonable for an employer to treat the current misconduct as a reason for dismissal.

When making that judgment tribunals should:

  • take earlier warnings into account;
  • take into account ongoing proceedings that may affect the validity of a previous warning;
  • consider what weight an employer has given to the employee's challenge before dismissing him or her.

In addition, tribunals should avoid looking behind previous warnings to assess their validity unless satisfied it was appropriate to do so.

The EAT decided dismissal was within the range of reasonable decisions an employer might take following the second incident, and the EAT upheld the Employment Tribunal's ruling that the dismissal was fair.

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