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06th January 2017

The Relevance of a Final Written Warning in a Claim for Unfair Dismissal

The Relevance of a Final Written Warning in a Claim for Unfair Dismissal

Employers will regularly face the complex issue of disciplining employees in situations arising from misconduct. In such circumstances, employers should be careful to deal with these issues promptly and consistently, carry out any necessary investigation, and decide on a reasonable outcome.

Sometimes employees may be given a “first and final written warning” if the circumstances are more severe. If a warning then leads to a dismissal, the case of Wincanton Group Plc v Stone provides guidance on how these warnings should be dealt with by an Employment Tribunal:

  • A Tribunal should focus on the reasonableness of the employer’s act in treating conduct as a reason for dismissal;
  • If a Tribunal is not satisfied that a previous warning was issued for an oblique motive or was manifestly inappropriate, or it was not issued in good faith nor with prima facie grounds for making it, then the warning shall be valid.

So, unless there is some reason to believe a warning was given inappropriately, then it should be assumed to be valid and fair.

Perrys Motor Sales Ltd v Edwards

In the above case, the Employment Appeal Tribunal (EAT) was faced with the issue that, in making its initial decision relating to the fairness of the Claimant’s dismissal, the Employment Tribunal considering the case previously had questioned the validity of an earlier final written warning. The Claimant had not complained about the warning in his claim form, and it had not been raised as an issue before the tribunal.

Did the Employment Tribunal make a mistake by questioning this previous warning?

Mr Edwards was employed as a service manager at a Vauxhall car dealership owned by Perrys Motor Sales Ltd (PMS Ltd). In May 2014, Mr Edwards received a first and final written warning regarding the way in which a number of invoices had been dealt with by his department. He did not appeal against the warning as he believed his employer had a fixed view about his involvement with those issues and he feared for the security of his job.

In August 2014, an issue arose with a used car that had been sold by PMS Ltd. This car had a faulty gearbox, and Vauxhall agreed to pay for 80 percent of the cost to fix the car if a claim for that amount was submitted within 45 days of the work being completed. The work was completed on 28th August, but Mr Edwards did not submit the claim until 16th November 2014. When he eventually made the claim, he entered the date on which the work was completed as 20th October 2014. This was within the 45-day period required by Vauxhall, but Mr Edwards knew this date to be incorrect.

Mr Edwards was dismissed for misconduct on the basis that he made the false submission, taken together with the previous final written warning that he had received for similar conduct.

Employment Tribunal

Mr Edwards claimed unfair dismissal in the Employment Tribunal, and the Tribunal considered that his dismissal was unfair.

When providing its reasons for the decision, the Tribunal said the basis upon which the final written warning in May 2014 had been given was unclear, and as a result it fell outside the range of reasonable responses available to an employer in those circumstances. As Mr Edwards’s dismissal was based upon that warning (albeit in part), it was unfair.

The Tribunal went on find that Mr Edwards had contributed to his dismissal by 50 percent, and his compensation would, therefore, be reduced accordingly.

PMS Ltd Appeal

The employer appealed against this decision to the EAT, and the appeal was upheld. The EAT stated, among other things, that the Employment Tribunal had misdirected itself as to the correct approach in respect of Mr Edwards’s earlier warning. He had not raised any issue with the warning in any sense relevant to the guidance on how a Tribunal should deal with warnings from Wincanton (above).

Mr Edwards had had not complained about the warning in his claim form, and the warning’s validity was not identified as an issue before the Tribunal. Notwithstanding this, the Tribunal looked behind the warning and made findings as to what it believed the warning really related to, and whether it had fallen within the permissible range of responses. The EAT considered this was an error of law for two reasons:

  • Firstly, the Tribunal had decided to determine a point that had not been in issue before it and;
  • Secondly, the wrong test had been applied. The Tribunal asked itself whether the warning fell within the range of reasonable responses, but the correct question should have been whether or not the warning had been issued for an oblique motive or was manifestly inappropriate, absent good faith and without prima facie grounds for making it, in accordance with the guidance in Wincanton (above).

By asking itself the wrong question, the Tribunal had erred in its approach to the issue of fairness, and had instead substituted its own view for that of the reasonable employer. The Tribunal’s correct approach should have been to consider the fairness of the dismissal against the existence of a valid final written warning. The case was remitted to a different Tribunal for a rehearing.

Guidance

Employers should ensure that any warning given to an employee can be justified and that the reasoning for it is clear. If an employee does not complain about a warning at the time, and does not raise the fairness of the warning as an issue as part of a claim, then usually it would not be relevant to the fairness of a dismissal.

Following a fair procedure, including a thorough investigation, and explaining the reasons for any disciplinary sanctions, should ensure that employers are in the best position to defend a claim of unfair dismissal.

*All information is correct at the time of publishing

Anthony Fox

Napthens LLP – Employment Law Specialist

Anthony is one of our Employment Law Specialists from Napthens Solicitors. Read more

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