Consideration of previous ‘unresolved’ warnings in unfair dismissal claims

The recent case of Rooney v Dundee City Council considered whether a previous warning that the employee had appealed against and where the appeal had not yet been heard, could be taken into account when considering whether to dismiss an employee for subsequent misconduct.  In this case, the tribunal concluded that it was within the range of reasonable responses to dismiss the employee taking into account the previous final written warning, even though the final written warning remained ‘live’, and without hearing the evidence relating to that initial warning.

The background to the case was that Mrs Rooney was a cashier supervisor who was found guilty of misconduct in December 2011 for failing to follow instructions; she processed a £1,300 corporate float transaction after the 3:30pm deadline meaning that she did not start her cash balance at 4:30pm.  As a result, the cash was not balanced that Friday evening and payments were not credited until Monday.  It was extremely rare for the cash balance not to be done at the end of the day and the council therefore took the decision to take disciplinary action against Mrs Rooney.

Mrs Rooney had previously received a final written warning in September 2010 for accepting a £10,000 payment by credit card from a customer with outstanding money laundering checks, contrary to instructions.  The final written warning was for a period of 15 months, of which there was 8 days left to run at the time of the second incident.  Mrs Rooney had appealed the final written warning and several appeal hearings had been planned but all had to be rearranged for various reasons meaning the appeal had not been heard at the time of the December 2011 incident.

The disciplinary officer upheld the allegations relating to the incident in December 2011 and also took into consideration the final written warning given in September 2010. As a result, taking the incidents together, Mrs Rooney was dismissed.  Mrs Rooney was offered the right of appeal the dismissal, which she took, and as part of the appeal the circumstances leading to the first written warning were reviewed.  The appeal officer considered that the warning had been justified, it could be taken into account and upheld Mrs Rooney’s dismissal.

Mrs Rooney had 26 years’ service with the council and had in fact received a long-service award during the last year of her employment.  She then brought a tribunal claim against her employer for unfair dismissal and the Tribunal expressed concern that the original appeal had not been heard but found that in any event, the Respondent had acted within the band of reasonable responses and the dismissal was fair.

On appeal, the EAT stated that in determining whether a dismissal is reasonable in a case where the employee has received a previous warning that is valid, the tribunal should consider the warning including whether there had been an internal appeal.  In many cases, a final written warning will indicate that further misconduct will be met with dismissal.  The EAT concluded that the tribunal had correctly applied the appropriate test, was aware that the first written warning was still under appeal and therefore upheld the tribunal’s decision that the dismissal was fair.

For employers this means that if there are “live” warnings these can reasonably be considered as part of a subsequent disciplinary process even if they initial warning is under appeal however care should be taken that the correct procedures are always followed particularly if cumulative warnings are to result in a dismissal.

For further advice on unfair dismissal issues, please contact James Johnson on 01332 225271 who will be happy to assist.