Fair dismissal when after two final written warnings to the employee he would still not conform to expected standards

Thomson Snell & Passmore’s Employment Team led by Nick Hobden acted for a voluntary assisted faith junior school, in Kent.

The School employed a caretaker whose responsibility was to open up the school gates in the morning to let parents drop their children off, lock them and then open them up again in the afternoon in good time for the arrival of parents to collect their children.  He was also responsible for securing the opening up and subsequently locking the buildings at the end of the school day and making sure that no one was left inside.

As an armed forces volunteer reservist musician attached to a unit in London, the caretaker was given dispensation to leave early one afternoon a week in order to fulfil his armed reservist duties.  However, he often left the school early without seeking permission and therefore the School was unlocked for a period before he returned later in the evening to lock up.  On one occasion, he left a member of staff locked inside the premises and on another occasion left someone locked in the washrooms.  He received a number of warnings including two final written warnings, which regrettably he ignored, because he did not obtain consent to take leave of absence; with the result that he was absent without leave and then returned later.  For both of the disciplinary and appeal hearings, he maintained that the School’s attitude towards him and his reservist activities was unfair and yet also he remained resolutely adamant that should he find that his personal commitments conflicted with his work commitments, the former would take precedence over the latter.

With the benefit of the considerable documentary evidence, including the written warnings and the minutes of disciplinary hearings, the School was able to assert successfully at the Employment Tribunal that the dismissal was for a fair reason, namely misconduct, and that the School acted as a reasonable employer in that the decision to dismiss was within a band of reasonable responses to the misconduct on the part of the caretaker.  It also showed that the appeal process and decision was fair. We managed to get across to the tribunal judge that the school and its governors were scrupulously fair and patient with the employee and therefore as a reasonable employer, they were vindicated in their approach.

The School was therefore successful in its defence of the unfair dismissal claim. Unfortunately, the School leadership team received a lot of adverse comments from people connected with the School who sided with the caretaker when they were not prepared to listen to the School’s side of the story.  The Judgment has therefore been instrumental in ensuring that the record has been put straight and that the decisions of the leadership team and governing body were fair and reasonable in all the circumstances.

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