An employee can be fairly dismissed for misconduct (rather than gross misconduct) if they already have a final written warning in place. In Beattie v Condorrat, the Employment Appeal Tribunal considered whether a final written warning could be valid if it was given without conducting a full investigation.
The employee was a bar steward in charge of stock orders and deliveries. Stock went missing and the employee was given a final written warning. During her appeal, she accepted part responsibility and offer to repay part of the cost. The employee then refused to sell tickets to a function because she was worried about money going missing while she was on a final written warning. She was dismissed for failing to follow that instruction. It was only misconduct, but she was dismissed because she was already on a final written warning.
The employee claimed unfair dismissal. The employment tribunal said she had been unfairly dismissed because the employer had not followed a fair procedure. However, it reduced her compensation to zero. They said there was a 100 per cent chance she would have been dismissed anyway, even with a fair procedure. The employee appealed. She said that the final written warning was invalid.
The Employment Appeal Tribunal did not agree. In general, earlier decisions made by employers should not be reopened unless there is evidence that the decision was manifestly unreasonable. Here, the employee had partially admitted her guilt. That mitigated the need for a full investigation. The final written warning was valid and the reduction in compensation was allowed. This case is comforting for employers. Unless previous decisions are manifestly unreasonable, tribunals should not reopen them.
Astons Solicitors
April 2019