Get your procedures right from the outset - you have been warned!

27/04/2011

By Nick Hobden, Partner and Head of Employment

When finally deciding to dismiss an employee, whether for misconduct, poor performance, poor attendance or anything else, it is tempting to presume that any previous warnings can simply be relied upon without further investigation. But the recent cases of Davies v Sandwell Metropolitan Borough Council  and Sakharkar v Fox's Biscuits should sound an alarm bell for us all.

Davies v Sandwell Metropolitan Borough Council 

In the Davies case, the employee was given a verbal warning and then a final written warning in respect of her conduct. She initially appealed the final written warning. But due to concerns about the prospect that the appeal panel might replace the warning with dismissal, her appeal was withdrawn. Following further allegations of misconduct, Miss Davies was dismissed. The decision to dismiss her relied upon the most recent conduct and the fact that she was already on a final written warning. Miss Davies brought a claim of unfair dismissal, essentially arguing that because the final written warning was unfair, the subsequent dismissal must be unfair as well.

The Employment Appeal Tribunal (EAT), relying upon previously decided cases, said that a final warning could be investigated where there was evidence that it had been issued for an oblique motive or it was manifestly inappropriate. The EAT acknowledged that Miss Davies had good reason to question the fairness of the final written warning, bearing in mind that she had persuasive evidence that suggested that the allegations levelled against her were untrue. The EAT found that the Employment Tribunal had, therefore, made a mistake in failing to take account of the circumstances in which the warning was imposed. The fact that Miss Davies had withdrawn her appeal had no bearing on the situation.

Sakharkar v Fox's Biscuits

In the Sakharkar case, the employee was dismissed by his employer under its absence policy. Before dismissal, the policy required the employer to go through four separate reviews of the employee's attendance. After the second review, the employee was told that he would be subject to a final review if he had two periods of absence in the next 12 months. After 2 further periods of absence, the employee was issued with a third stage warning. But the second absence fell outside the 12-month period. Despite this fact, when the employee was absent again, he was dismissed.

The Employment Tribunal accepted that the employer had made a genuine mistake, when issuing the third warning. It noted that no one else picked up on the mistake and, therefore, the employer had acted reasonably in the circumstances. But the Employment Appeal Tribunal saw things differently. It concluded that, when considering whether to dismiss the employee, a reasonable employer would have taken account of the fact that the third stage warning was incorrectly issued. Such an employer would, therefore, have decided not to dismiss the employee.

Comment

These two cases underline the importance of reviewing the circumstances in which previous warning might have been issued when dismissing in reliance upon those warnings. The fairness of those warnings can have a bearing on whether the employer has acted reasonably in dismissing the employee.

Following your own procedures and getting things right is very important. This is particularly the case for larger employers with an HR department there to ensure that everything it in order. You have been warned!