Page 29 - BOSS Today Issue 22

“The moral of the story

for employers is to ensure
that the reasonableness of

a dismissal is in line with

the relevant guidance.”

disciplinary issue arose, stated as in conjunction with section
being for inappropriate conduct. 98(4) of the Employment Rights
Mrs Rooney’s previous appeal Act 1996 (whether the decision
against the charge of failure to to dismiss was reasonable in the
follow instructions was of course circumstances) and that a final
still active when this second written warning implies that any
allegation surfaced. future misconduct will result in
The Council’s disciplinary dismissal.
manager upheld the latter The EAT upheld the
inappropriate conduct charge, original tribunal’s decision
which, taken alone, would that the dismissal was fair in
normally only have amounted the circumstances and that
to a final written warning. This it had applied the correct
charge, however, did mirror test, specifically whether
aspects of the first written dismissal was within the range
warning, meaning that - when of reasonable responses an
considered together - the employer might take. The
incidents justified dismissal. original tribunal was aware that
Mrs Rooney then appealed Mrs Rooney’s first warning was
the decision to dismiss her. under appeal at the time of
he use of warnings as Rooney v Dundee City Council, As part of that process, the dismissal for the second incident
Ta disciplinary tool by the question was considered facts of the first warning were and had correctly considered
employers - and the litigation as to whether it is within the considered. The Council took the Wincanton guidance.
that can sometimes result from range of reasonable responses the view that the first warning
this - can be a rather confusing for an employer to dismiss an was warranted and so there was Conclusion
area of employment law. This employee taking into account no compelling reason not to The moral of the story for
may well be due to the historic a final written warning, when factor it into the overall decision employers is to ensure that the
alterations in the relevant law. an appeal against it remained to dismiss Mrs Rooney; her reasonableness of a dismissal
Prior to April 2009, there outstanding and without dismissal was therefore upheld. is in line with the relevant
was a statutory three-stage hearing evidence regarding the In considering Mrs Rooney’s guidance. It is worth noting
disciplinary procedure in place imposition of that warning. appeal from the tribunal of that, in this case, the initial
which, while relatively clear and The Claimant, Mrs Rooney, first instance, the EAT was Employment Judge did not
understandable, was overly was a cashier supervisor at referred to the guidance given agree with the tack taken by the
rigid and so was replaced by the the Respondent Council. Mrs in Wincanton Group v Stone & employer; however the judge
current ACAS Code of Practice. Rooney had a final written Gregory. This dictated that when was mindful not to substitute
This left employers to their own warning for her failure to follow considering the reasonableness his own view for that of the
devices in putting disciplinary a reasonable management of a dismissal where there is employer.
policies in place, including instruction, which she appealed. a valid warning, the tribunal
how to stage warnings leading The appeal hearing, while should take into account the n FOR FURTHER
towards the dismissal of an scheduled, was rearranged facts of the warning, including INFORMATION CONTACT
employee. several times, but ultimately whether it had been appealed. THE BOSS LEGAL TEAM ON
In the recent Employment never heard. The action taken by the 0845 450 1565
Appeals Tribunal (‘EAT’) case of Subsequently, a further employer should be considered

May 2014 | BOSS TODAY 29

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