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Case law: Prior final written warning was valid, despite failure to fully investigate when it was given

Employers must follow fair procedures, including carrying out a proper investigation, when deciding whether to issue a disciplinary sanction such as a final written warning. However, a tribunal will not generally re-open the validity of past written warnings when deciding whether a subsequent dismissal is fair, a recent case shows.

April 2019

This update was published in Legal Alert - April 2019

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.

A bar steward at a social club was given a final written warning after an audit showed 26 bottles of spirits were missing. She had carried out an investigation to try and find out how the stock had gone missing but had been unable to do so. No other investigation was carried out by the club.

The steward accepted partial responsibility for the loss and offered to reimburse part of the loss to the club, along with the other employee who she considered may also have been responsible (although that employee refused to pay her share).

She later refused an instruction to sell tickets for a club dinner from the bar in case money went missing and she ended up under suspicion again. This refusal amounted to gross misconduct under her terms of employment and she was dismissed.

She claimed unfair dismissal on grounds that the club should not have taken her prior final written warning into account because there had been no proper investigation by the club at the time.

The Employment Tribunal said it could not re-open the issue of the original final written warning, especially as she had admitted partial responsibility at the time and offered to repay some of the losses. It therefore found that the original final written warning was valid.

The Employment Appeal Tribunal agreed, saying that it was not generally valid to try to re-open prior final written warnings.

Operative date

  • Now

Recommendation

  • Employers should follow fair procedures, including a proper investigation, when deciding whether to issue a disciplinary sanction such as a final written warning, but can rest assured that a tribunal will not generally re-open the validity of past written warnings when deciding whether or not a subsequent dismissal is fair.

Case ref: Beattie v Condorrat War Memorial and Social Club & Others UKEATS/0019/17/JW

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