Page 32 - BOSS Today Issue 16

HR

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dIsmIss

Recent EAT t is common practice accident, and on the back of since the first warning had been
for disciplinary warnings a written warning for a refusal appealed and was therefore the
guidance means Ito remain active in an to obey a lawful management subject of a collective grievance
employers employee’s personnel file for up order. Stone had in fact and litigation.
appealed against this initial
The ET felt that it would have
to 12 months. And that means
can still take any further warnings during warning. been prudent for a reasonable
this period may lead to the The management agreed employer, given Mr Stone’s
account of higher sanction of dismissal – that if Stone had had a clean length of service, to have
previous depending, of course, on the disciplinary record, the second waited for the outcome of the
type of misconduct committed. incident would have warranted grievance and litigation relating
warnings when That sounds fine in theory, a final written warning, rather to the first warning before taking
considering but how does it work out in than a dismissal. further action. The ET did not
practice? Stone claimed unfair dismissal draw any conclusions as to
a fresh How to deal with an in the Employment Tribunal (ET) whether or not the first written

disciplinary employee who has an allegation on the basis that the two acts of warning was fair.
misconduct were not the same
of misconduct held against
incident – as them when they have already or even similar in nature. He held The EAT step in
had an earlier written warning that the former act should not Subsequently, the EAT
long as the is a question that has often have been considered in the overturned the ET’s finding of
previous warning arisen both for employers second disciplinary action. unfair dismissal and remitted
and tribunals. Fortunately the the case for a re-hearing. But
is watertight Employment Appeals Tribunal The ET decision in the process, it also set out
(EAT) in Wincanton Group v The ET upheld Stone’s claim for guidance for tribunals dealing
Stone has provided guidance on unfair dismissal on the basis that with dismissals involving
this issue. dismissal was not within the accumulated warnings.
band of reasonable responses to The overall question is
The story his conduct. the reasonableness of the
Stone, a lorry driver, was In the ET’s reasoning, it stated employer’s act of treating
dismissed from the company that the totting up process conduct as a reason for
following a serious driving should not have taken place, dismissal.

32 BOSS TODAY | March/April 2013

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