In cases of gross misconduct, employers have the right to summarily dismiss employees (i.e. with no notice or previous warnings). Where the conduct in question, however, does not amount to gross misconduct, dismissal may nevertheless be appropriate based on existing live warnings.
When considering the fairness of such dismissals, is it open to the tribunal to look at the basis and fairness of the previous warnings?
This was the issue confronting the EAT in Wincanton Group v Stone. In this case, Mr Stone was dismissed following a serious driving accident. The disciplinary manager advised that he would have issued a final written warning but for the fact that Mr Stone had a live written warning on file. The employee had challenged the issuing of the previous warning and indeed had raised separate tribunal proceedings in relation to the issuing of that warning (the proceedings still being ongoing at the time of the dismissal).
The employment tribunal found the dismissal unfair on the basis that, as it was in the process of being challenged, the previous warning should have been held in abeyance and, in any event, the tribunal did not think that the previous warning ought to have been issued.
The EAT overturned the tribunal’s decision. It found that, unless the earlier warning had been issued in bad faith or was manifestly inappropriate, it was not open to the tribunal to look behind the warning.