Issuing a final written notice to an employee for misconduct is part of the disciplinary procedure in a workplace. It requires an employer to set out in the written terms of employment the details of its disciplinary rules and procedures applicable to the employee. An employer can only fairly dismiss an employee based on conduct which amounts to gross misconduct or after a final written warning by the employee for a past act of misconduct, and that warning remains ‘live’ at the time the subsequent act of misconduct is committed. Employer may issue final written warnings following prior informal/formal verbal/written warnings to the employee. Where the nature of the conduct is severe or is one of gross misconduct, employer may issue an employee a final written notice or even dismissal with no previous act of misconduct recorded against the employee.
If an employer forms the view that an employee’s conduct deserves a formal warning, the conduct should be investigated, and if there is evidence to move the investigation forward, they should invite the employee for a disciplinary hearing. Issuing a final written warning is an essential procedural step designed to ensure that dismissal for subsequent conduct is fair although dismissal for subsequent conduct following a subsisting final written notification may sometimes be unfair under certain circumstances. It happens where an employee dismissed after a final written warning reopens the case of the final written notice by arguing that the dismissal has been unfair because the warning was invalidly given. This is the argument put forward by the Claimant in the recent case of Beattie v Condorrat War Memorial and Social Club & Others (EAT).
In Beattie’s case, Respondent issued the Claimant employed as a bar steward final written warning following the loss of twenty-four bottles vodka and two bottles of brandy, the circumstances of which she could not explain. The notice was to expire after 12 months. While she appealed to the decision, she also accepted being partly responsible for the loss and offered to repay part of the cost. The Respondent rejected her offer, and her appeal was equally dismissed. While the warning was still live, she refused several requests to sell tickets for a function because she feared she could face dismissal if the money went missing while she was responsible for the tickets. The Respondent suspended her on full pay pending an investigation into her conduct. She was subsequently dismissed without a formal disciplinary hearing.
Claim at Employment Tribunal
The Claimant brought a claim for unfair dismissal contending that the Respondent had followed an unfair process in dismissing her. She averred that the earlier final written warning issued her was invalid and because the Respondent’s failed to investigate allegations against her and thus not guilty of gross misconduct.
The ET held that her dismissal was unfair on grounds of improper procedure by her employer’s failure to hold a disciplinary hearing before her dismissal. The ET, however, observed that the Claimant’s part admission of responsibility for the missing stock was sufficient evidence for the Respondent to draw an inference that she had been negligent and thus reaching a conclusion she committed an act of misconduct amounting to serious misconduct for which she was issued a final warning. The Tribunal considered remedy and held that the Claimant’s compensation should be reduced to nil because there was a 100% chance that her appeal would have failed had proper procedure been followed.
Appeal to Employment Appeal Tribunal (EAT)
On appeal, the Employment Appeal Tribunal upheld the ET’s decision holding that in the absence of any oblique motive, manifest inappropriateness, or bad faith which was not alleged by the Claimant, it is not part of the general function of an employment tribunal to reopen a previous warning as part of an unfair dismissal case. The EAT also concluded that it was fair for the ET to rely on this warning to find that 100% reduction was appropriate.
Lessons from the decision
- Employers should before issuing a final written warning ensure that the conduct involved is covered under their disciplinary rules. It is essential to identify behaviours that may be regarded as misconducts.
- Employers must ensure that allegations are investigated thoroughly, mainly where dismissal is a possibility, and a disciplinary hearing should always be held.
- The employer should adhere to fair process per the company’s disciplinary rules and ACAS procedures including ensuring that those who carry out investigations are separate and distinct from those who sit on the disciplinary hearing or appeal against dismissal.
- Employers must consider every mitigating circumstance before deciding on the sanction to impose on an erring employee.
- The employee needs to remember his misconduct will be taken into account in considering remedy following a finding of unfair dismissal by the ET and this can reduce an award to zero under the principle in Polkey’s
- That it is not part of the general function of an employment tribunal to inquire into the validity of a previous warning as part of an unfair dismissal case in the absence of any oblique motive, manifest inappropriateness, or bad faith by the
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