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Employment case law update: March 2011

The Employment Appeal Tribunal (“EAT”) has recently been asked to consider the impact of previous warnings on the fairness of subsequent dismissals.

The case of Davies v Sandwell Metropolitan Borough Council concerned a teacher who was given a final written warning in 2005. She initially indicated that she wanted the opportunity to appeal the decision, by way of a full rehearing, at which she intended to introduce new evidence. However, after receiving advice from her union she decided not to pursue the appeal for fear of facing a harsher sanction second time around. The teacher was dismissed following further complaints made against her which, the Council decided, coupled with the final written warning, amounted to a sufficient reason for dismissal.

At the Employment Tribunal, it was decided that the Claimant’s failure to continue with the appeal entitled the Council to assume that the final written warning was valid. However, the EAT disagreed and found that whether or not the Claimant appealed was irrelevant to the fairness of the dismissal. The case has now been remitted back to the Employment Tribunal for a rehearing.

Previous warnings have also been put under the spotlight in the case of Sakharkar v Northern Foods Grocery Group Ltd t/a Fox’s Biscuits. This case concerned a dismissal under the employer’s absence policy where the final warning immediately preceding dismissal was given in error. The EAT decided that it was possible for a tribunal to look back at the erroneous previous warning when deciding whether the employer’s decision to dismiss was unfair. It concluded that had the Tribunal done this they would have found that the employee’s dismissal had been unfair.

These decisions serve as a reminder to employers that the tribunals are able to examine the reasonableness of previous warnings in dismissal cases. It highlights the importance of ensuring that misconduct and capability procedures are applied fairly and consistently at all stages not just in relation to the dismissal itself.

For more information, please contact our Employment & HR team.

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