Informal warnings and dismissals - a new decision

12/08/2010

By Nick Hobden, Partner and Head of Employment

The case of London Borough of Brent v Fuller is an interesting one. It suggests that when dismissing an employee for misconduct, an employer may be entitled to rely on an earlier incident of similar misconduct, even though that incident did not result in formal disciplinary action.

The facts

Mrs Fuller (F) was an administrative assistant in a school. The pupils of the school were children with social and emotional needs that kept them out of mainstream schooling. There were 20 staff at the school and those with contact with the children comprised teachers, family support workers, teaching assistants and psychologists. Three of the staff, including F, did not have contact with the children.

There were considerable disciplinary problems at the school and pupils were disruptive on a daily basis. There was an incident in May 2007 involving a pupil who was being restrained by staff. F intervened. Following the incident, there was a brief conversation between the Head Teacher and F, where she was instructed not to interfere in such situations in the future. No formal action was taken.

In October 2007, a similar incident arose where a disruptive pupil was being restrained. Once again F intervened, making comments about the method of physical restraint and that it should stop.

Following the incident, F was suspended and charged with gross misconduct, including charges of "repeated and inappropriate intervention into behaviour management issues and failure to follow reasonable management instructions." F was subsequently dismissed based on the October incident. But the decision to dismiss was made after considering the May incident, even though no formal warning was given to F at the time.

The decision

F brought a claim for unfair dismissal, arguing that the way the school dealt with her intervention and comments was incorrect. The school argued that F should have known what was expected of her. Following the May 2007 incident, F was aware that she should not intervene when a child was being restrained. Despite this fact, she intervened again in October 2007. 

The Employment Tribunal ('ET') found that F had been unfairly dismissed because her behaviour in October was not as serious as had been portrayed. The ET saw it as a 'one-off' incident which did not merit dismissal.

The school appealed. The Employment Appeal Tribunal ('EAT') allowed the appeal and found that F had been fairly dismissed. The school was unique; it faced unique problems. The professionals had been trained to deal with the pupils and F had not.  The Head Teacher and Governors were entitled to take the view that F's actions in front of pupils was inappropriate and that she should have been aware following the May incident that intervening was not appropriate. F had been instructed not to interfere when a pupil was being restrained, but did so again.

The EAT concluded that the school could not be criticised for using the May incident as background in their contemplation of disciplinary action to be taken against F, bearing in mind that it meant that F was very aware of the unacceptable nature of her behaviour.

What does this mean for employers

When investigating an employee's conduct as part of a disciplinary process, in the right circumstances, it may be reasonable to consider an employee's previous misconduct, even if the employee received no formal sanction. That said, it is important to take great care when doing so. It should be used as background information only and whilst it may be considered in making the decision to dismiss, it should not be the sole or substantial basis of that decision. 

This is a difficult area, with many pitfalls for the unwary. If you are dealing with a situation where you want to take account an employee's previous conduct, but are unsure whether you can, call a member of the Employment team to discuss the matter further.