The fairness of final written warnings when it comes to dismissing an employee

In the recent Employment Appeal Tribunal (“EAT”) case of Beattie v Condorrat War Memorial and Social Club & others, the EAT considered whether it would have been appropriate for the Employment Tribunal to have considered whether a final written warning that had been previously issued to the Claimant was valid.

This case highlights the importance for an employer of being able to rely on existing warnings when it comes to justifying the dismissal of an employee, and the difficulty an employee will have in later challenging such previous warnings before a tribunal.

The facts of the case

The Claimant was employed by the Respondent as a bar steward at a social club. She had previously received a final written warning over a stock shortage of alcohol which she could not explain. At the time the shortage was identified, the Claimant accepted part of the responsibility and offered to pay part of the cost. Some four months later, while the warning remained live, the Claimant was asked to sell tickets for a function which was taking place in the social club. She refused to do so due to concerns that allegations would be made against her if any of the ticket sale money was to go missing. She was asked on several occasions to sell the tickets, but continued to refuse. The Respondent, unhappy at this failure to follow instructions, suspended the Claimant on full pay to allow investigations to be carried out.

Following an investigation, which the Claimant was not involved in, it was decided that she should be dismissed. This was confirmed in writing to the Claimant. She appealed and was unsuccessful.

The decision

The Claimant brought a claim in the Employment Tribunal alleging unfair dismissal and accordingly, it was for the tribunal to decide if the Respondent’s decision to dismiss fell within the band of reasonable responses which a reasonable employer may have adopted given the circumstances.

The EAT held that as the proper procedure had not been followed and a disciplinary hearing had not been held, that the dismissal was indeed unfair. Accordingly, it was then for the Tribunal to consider the matter of remedy. After some further consideration, it was held that the Claimant’s compensation should be reduced to nil. This was on the basis that the Tribunal considered that there was a 100% chance that the Claimant would have been dismissed if a correct procedure had been carried out. The fact that the final written warning remained live at the material time was considered important.

The Claimant appealed to the EAT.

The appeal

On appeal, the Claimant argued that the earlier final written warning was invalid and accordingly the reduction to her compensation was not justified. The Claimant contended that it was she herself who had carried out the investigation into the missing stock, and when she could not identify the cause, the Respondent had not undertook its own investigation to ascertain what, if any, degree of fault could be attributed to the Claimant.

The EAT upheld the unfair dismissal. While it was acknowledged that the initial investigation had not looked at the Claimant’s wrongdoing specifically, tribunal’s focus was rightly on the validity of the earlier warning rather than the dismissal itself. The EAT agreed with this approach – as the Tribunal had accepted that there was good reason to issue the initial warning, it was fair to rely upon this and therefore the reduction in compensation was acceptable.

The existing approach of tribunals as to how it should approach such previous warnings was re-affirmed. Absent any oblique motive, manifest inappropriateness, or bad faith (which was not alleged in this case), then it is not part of the general function of an employment tribunal to reopen a previous warning as part of an unfair dismissal case.

As such, the Claimant’s appeal was dismissed, and the reduction to the compensatory award was not amended. It’s an interesting example of the tribunal’s ability to find a dismissal was unfair, but to reduce compensation (in this case, 100% of the compensatory award) on the basis that the unfairness was simply due to a procedural fault and had a fair procedure been followed, the Claimant would inevitably have been dismissed in any event.

As stated in the introduction, this case highlights that employers can rely on existing warnings when it comes to justifying the dismissal of an employee, and the difficulty the latter will have if they then try to challenge such previous warnings before a tribunal.

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