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Last month I commented on the case of Simmonds v Milford Club in which it was thought appropriate to revisit previous warnings if they were “manifestly inappropriate” when considering the fairness of a misconduct dismissal, Davies v Sandwell Metropolitan Borough Council emphasises that this approach is very much the exception to the rule.

In Davies the claimant, a teacher, had been given a final written warning for misconduct during a lesson on static electricity, against which she appealed. That appeal was never concluded after being adjourned at the request of the union official representing the teacher. It thus remained “live”. There was then a second allegation of misconduct and the claimant was dismissed, taking into account the subsisting warning. The dismissal was found to be fair by two different Employment Tribunals, the second of which specifically examined whether the warning had been valid.

The Court of Appeal turned down an appeal by the claimant; she had not shown that the warning was manifestly inappropriate, and although not strictly necessary for the decision, the Court also expressed the view that in appropriate cases it is legitimate to take into account the fact that an appeal against a warning has been abandoned or withdrawn.

The Court also took the opportunity to remark that tribunals should not get bogged down in listening to a mass of irrelevant evidence and should, if the parties do not do so themselves, take control of proceedings to avoid the waste of time and money. As Lord Justice Lewison commented:

As a newcomer to this field, I cannot believe that it was intended that a claim for unfair dismissal should take some four weeks to hear, with witnesses producing witness statements hundreds of pages long and being subjected to cross-examination for days on end. In our case aspects (b), (c) and (d) of the overriding objective seem to have been largely forgotten. The function of the ET is a limited one. It is to decide whether the employer acted reasonably in dismissing the employee. It is not for the ET to conduct a primary fact-finding exercise. It is there to review the employer’s decision. Still less is the ET there to conduct an investigation into the whole of the employee’s employment history. The ET itself commented in this case that much of the evidence that it heard was irrelevant to the issues it had to decide. But irrelevant evidence should be identified at the case management stage and excised. It should not be allowed to clutter up a hearing and distract from the real issues. The ET has power to do this and should not hesitate to use it. The ET also has power to prevent irrelevant cross-examination and, again, should not hesitate to exercise that power. If the parties have failed in their duty to assist the tribunal to further the overriding objective, the ET must itself take a firm grip on the case. To do otherwise wastes public money; prevents other cases from being heard in a timely fashion, and is unfair to the parties in subjecting them to increased costs and, at least in the case of the employer, detracting from his primary concern, namely to run his business.