Dismissals involving accumulated warnings

In the case of Wincanton Group v Stone the EAT considered the fairness of a dismissal based on accumulated disciplinary warnings. The question was can a tribunal look behind earlier warnings?

The answer was no, unless satisfied that an earlier warning was issued in bad faith or was manifestly inappropriate.

The case involved a lorry driver (the Claimant) who was dismissed for misconduct after a serious driving accident, further to an earlier written warning for different misconduct.  The dismissal was found by the Employment Tribunal to be unfair. They took into account the fact that the Claimant challenged the earlier warning and how it arose, although that warning was found to be valid.

The finding of unfair dismissal was overturned by the EAT and the case was remitted for re-hearing and guidance was laid down for Tribunals dealing with dismissals involving accumulated warnings.

The guidance is based on the overall reasonableness of the employer’s act of treating conduct as a reason for dismissal under section 98(4) of the Employment Rights Act 1996. Specifically, where the earlier warning is valid, Tribunals should consider the following:-

  • The fact of that earlier warning;
  • Avoid “going behind” an earlier warning by considering its validity, unless satisfied that it is appropriate to do so;
  • Any proceedings that may affect the validity of that earlier warning, such as an internal appeal and what weight the employer gave to that challenge before dismissing;

However, the EAT confirmed that Tribunals are not “going behind” a warning by taking into account the factual circumstances that gave rise to it, the similarity between the earlier warnings and dismissal and the consistency of the employer’s approach.

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