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Failure to hear outstanding appeal against a warning did not affect fair dismissal
A final written warning can be taken into account when dismissing an employee, even where there is an appeal outstanding against that warning and without hearing evidence regarding the imposition of the warning.
In this case, A was employed as a cashier supervisor by the Respondent. On 10 September 2010, she received a final written warning for failing to follow instructions from her supervisor not to process a payment as it may have involved money laundering. A appealed the decision to issue her with a final written warning, but no appeal was ever heard. Following a further incident where A failed to follow instructions on 2 December 2011 and following a further disciplinary process, she was dismissed. The appeal officer was aware of the final written warning and the fact that A's appeal had not been concluded and chose to dismiss A on the grounds of conduct. A’s appeal was also refused. The Employment Tribunal found the dismissal fair and A appealed to the EAT, where she lost her appeal.
The EAT considering the guidance set out in the case of Wincanton Group Plc v LM Stone & C Gregory UKEAT/0011/12 which is that unless a Tribunal is satisfied that a warning was not issued in good faith or without prima facie grounds of making it, then it will be valid. However, the Tribunal should take into account the fact of the warning and any proceedings which may affect the validity of the warning, in this case, that was the internal appeal.
The Tribunal Judge had considered the fact that the appeal against the final written warning had not been heard, he reminded himself that he had to take care not to substitute his own view for that of the employer and decided that the decision not to hear the appeal was a reasonable one, even if he would not have done so himself, because the first incident was serious and that the Claimant had ignored an instruction. In doing so, the Tribunal judge had considered the decision to proceed without hearing an appeal and the decision to dismiss and as such had carefully and correctly applied the law.
This case demonstrates that in certain fact sensitive situations, it is possible to proceed to a disciplinary hearing and potentially dismiss an employee, without hearing an outstanding appeal in relation to an earlier disciplinary issue. This case was very much decided on its particular facts and generally an employer should take all reasonable steps to hear and conclude any outstanding internal appeal.