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Unfair Dismissal - Relevance of previous warnings

View profile for Kate Fretten
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Rooney v Dundee City Council

In this case the Employment Appeal Tribunal held an employment tribunal can decide that it is within the range of reasonable responses for an employer to dismiss an employee taking into account a final written warning when an appeal against it remained outstanding, without hearing evidence regarding the imposition of the warning.

The Claimant had a final written warning for failing to follow an instruction, which she appealed. The appeal hearing was rearranged a number of times but was never heard. In the meantime a separate disciplinary issue arose, for inappropriate behaviour. The allegations were upheld but, in isolation, would only have justified a final written warning. However, the second incident bore similarities to the circumstances to the first and therefore, taken together, the employer said it justified dismissal.

The EAT upheld the tribunal’s decision that the dismissal was fair. The tribunal had applied the appropriate test, namely whether dismissal was within the range of reasonable decisions an employer might take and it had been made aware that the warning was under appeal.

In Practice

Employment Partner Kate Fretten says, “We are often asked by clients whether they have to delay going ahead with a second disciplinary hearing when there is an appeal outstanding concerning a first one. This case demonstrates that employers can go ahead without delay, although we advise caution in doing so, particularly if the circumstances surrounding the two disciplinary hearings are different.”

At Frettens, all of our solicitors offer a free initial meeting to chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.

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