Where an employee is dismissed for misconduct and there was a live final warning on their disciplinary record which appears, on the evidence, to have been “manifestly inappropriate”, then a tribunal should not just look at whether the employer has taken a reasonable approach to the event triggering dismissal, it must also look back and consider whether the final warning was fairly given as well: so says the Employment Appeal Tribunal in Simmonds v Milford Club.
A steward at a private club (how many employment cases have featured stewards in private clubs!) was dismissed for disobeying an instruction to give all staff a bottle or bottles as a Christmas bonus; he gave them a cash gift instead. The sanction was settled on because he already had a current final warning, for letting his wife deposit takings at the bank instead of doing it himself.
The Employment Tribunal to which he took his case felt that the bonus issue alone would not justify dismissal, but that taking into account the earlier warning, it was fair to dismiss. With regard to that warning, they found as a fact that the steward had never been told not to allow anyone else to bank the takings, but thought he ought to have worked that out from his previous experience as a pub landlord.
The Employment Appeal Tribunal rejected this assumption. If an Employment Tribunal has reason to consider that a material previous disciplinary sanction may have been manifestly inappropriate, it should hear evidence and decide on the relevant facts whether the sanction applied was manifestly inappropriate.
The Honourable Mrs Justice Slade explained the correct approach in such circumstances as follows:
The Employment Tribunal would not have found the dismissal of the Claimant to be fair in the absence of the final written warning. Their approach to that warning was, therefore, very material to their decision. It is also apparent from the judgment that the Employment Tribunal did not consider whether the sanction of the final written warning was consistent with the disciplinary procedure under which the warning was given. In our judgment, that fact of itself should give rise to concern as to the appropriateness of the sanction applied. It can be seen from the disciplinary procedure that examples are given of conduct that attracts the different levels of sanction under the procedure. The procedure also indicates the approach to be taken to the sanction to be applied for certain types of conduct. If, in any case, a particular sanction is applied by an employer which is outside those to be applied for the conduct of which an employee is found to have committed, that may well give rise to a concern that the sanction applied is manifestly inappropriate. That is a fact-sensitive enquiry to be addressed by Tribunals on the evidence before them. However, the Tribunal in this case did not engage in such an enquiry…
Without wishing to overcomplicate the approach to the scrutiny of a disciplinary sanction that is questioned, in our judgment on the authorities, if an Employment Tribunal has cause on the facts to consider that a material previous disciplinary sanction may have been manifestly inappropriate, it should hear evidence and decide on the relevant facts whether the sanction applied was manifestly inappropriate. In this case, the Employment Tribunal did not do so, and the appeal is allowed.
Whenever an employer is considering action that will take into account a prior disciplinary sanction, the starting point is to review the prior sanction. It may seem an obvious point but it is remarkable how often it is overlooked and less remarkable that employers can find themselves in considerable trouble of their own making.