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Tribunals Considering the Fairness of Previous Warnings

It is not uncommon for employees to be issued with final written warnings for conduct that is too serious to warrant a first warning, but is not sufficiently serious to amount to gross misconduct and warrant dismissal.  Such final written warnings usually stay on the employee’s record for a period of time and, if there is further misconduct within that time which warrants a warning, it can then lead to the dismissal of the employee. When an employee is dismissed in this way and they make a claim for unfair dismissal, they may, as part of that claim, argue that a previous warning or warnings given were unfair, which means their dismissal is unfair.

The case of Adegobola v Marks and Spencers PLC considers whether a Tribunal can explore the fairness of previous warnings.  Ms Adegobola was employed as a customer assistant from December 2007 until 15 November 2011. On 21 July 2010 Ms Adegobola was involved in an incident with another employee, which resulted in her being issued with a final written warning.  The warning explained that any further acts of misconduct could result in her dismissal. 

On 21 October 2010, Ms Adegobola was involved in an argument with a manager during which she raised her voice and displayed aggressive behaviour.  It was also alleged that a person had sought to reclaim VAT on goods bought using Ms Adegobola’s store discount card.  An investigation was undertaken and the investigating officer concluded that there was a case to answer in relation to the argument between Ms Adegobola and the manager and in relation to Ms Adegobola purchasing goods for resale contrary to the terms of the use of her store card.  The latter allegation was made as a result of information given by Ms Adegobola during the investigatory meeting.  Following a disciplinary hearing both allegations were upheld and Ms Adegobola was dismissed for gross misconduct.  Her subsequent internal appeal was unsuccessful.

Ms Adegobola claimed unfair dismissal.  A Tribunal dismissed Ms Adegobola’s claim finding that she had been dismissed fairly.  In its judgment, one of the points made by the Tribunal was that it did not consider that it had jurisdiction to reopen the incident in July 2010 and consider whether the final written warning issued was unfair.

Ms Adegobola appealed to the Employment Appeal Tribunal who agreed with the Tribunal.  She then appealed to the Court of Appeal (“CA”) and argued, amongst other things, that the Tribunal had erred in law by failing to consider a final written warning she had previously received.

The CA upheld the judgment of the Tribunal.  In doing so it found that the charge relating to the discount card amounted to gross misconduct on its own and therefore the issue of the final written warning was not relevant.  However, it also pointed out that the Tribunal had been wrong to state it could not consider the fairness of the previous final written warning and that the essential principle laid down in the legal authorities is that it is legitimate for an employer to rely on a final written warning, provided that it was issued in good faith, there were at least grounds on the face of it for imposing it, and it must not have been manifestly inappropriate to issue it. 

Although the fairness of the final written warning was irrelevant in this case, the CA’s judgment highlights that Tribunals can look back at previous warnings. Employers are therefore advised to follow a thorough and fair procedure at all levels, even if the alleged conduct could only warrant a warning or final written warning if upheld. Also, mishandling disciplinary procedures which result in actions short of dismissal can in certain circumstances result in employees resigning and claiming constructive unfair dismissal e.g. where a final written warning is issued when it’s an in appropriate sanction.

If employers require advice regarding their disciplinary procedure or in relation to taking disciplinary action against employees, they should contact Jennifer Gibson on 01952 211025 or John Merry on 01952 211010.