Whether previous warnings can be taken into account when considering a claim for unfair dismissal

In this month’s E-News, we look at a case which considered whether previous warnings could be taken into account in a claim for unfair dismissal; whether an Employment Tribunal could substitute its own view of the seriousness of an employee’s misconduct; and whether a disclosure made after the employment has terminated could still be a protected disclosure under the whistleblowing provisions.

Whether previous warnings can be taken into account when considering a claim for unfair dismissal.

The Employment Appeal Tribunal considered this in the case of Simmons v Northwood Club. In this case, Mr Simmons was dismissed for giving staff a £15 Christmas bonus in cash instead of a bottle of wine of up to the value of £15 as instructed. This was a harsh decision but the employee was dismissed because he was already under a final written warning.

The reason why Mr Simmons was issued with a final written warning was because he had asked his wife to deposit the Club’s takings while he waited outside in the car, having been unable to park near the bank.

The Employment Tribunal held that his dismissal was fair and the Company was entitled to dismiss Mr Simmons. In reaching its decision the Employment Tribunal failed to consider whether the final written warning was consistent with the Club’s disciplinary procedure. Mr Simmons appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal allowed his appeal and the matter has been remitted to the Employment Tribunal to consider whether the issue of the final warning was manifestly inappropriate.

The Employment Appeal Tribunal stated “It is only where on the facts there is a real concern that a sanction may have been manifestly inappropriate that it will be necessary for an Employment Tribunal to engage in a factual enquiry and detailed scrutiny of the circumstances in which that sanction was applied…. manifestly inappropriate is a higher threshold than the test of that which is applied to the test of reasonableness of a dismissal”.

This case highlights the importance of considering the basis upon which a final written warning has been issued particularly where the Employer later relies upon it to dismiss an employee for a further act of misconduct.

In Tayeh v Barchester Healthcare Ltd [2013], the Court of Appeal considered whether an Employment Tribunal could substitute its own view of the seriousness of an employee’s misconduct
.

Ms Tayeh was a registered nurse at Magnolia Court Care Home and her employment was subject to an Employee Handbook, which contained a list of the types of conduct that her employer (BHL) considered to be gross misconduct.

A number of allegations were made about Ms Tayeh, who was responsible for the second floor in the Care Home, including:

  1. Obstructing the fire doors;
  2. Allowing nurses to be asleep;
  3. Sleeping herself;
  4. Falsifying company records (such as PEG feed documentation);
  5. Failing to carry out observations on a resident following a fall; and
  6. Failing to complete the necessary transfer form once that resident had been transferred to hospital.

All six allegations were found to have been proved and Ms Tayeh was issued with a final written warning in respect of the first three. However, BHL found that the charges of falsifying the PEG feed documentation and failing to carry out observations on a resident following her fall, constituted gross misconduct, resulting in Ms Tayeh being summarily dismissed.

The Employment Tribunal held that Ms Tayeh’s dismissal was unfair on the basis that the falsification of company records was clearly “in a different category of seriousness” from the other types of gross misconduct listed in BHL’s Employee Handbook. The Tribunal held that, in its view, the dismissal on this ground was not “within the range of reasonable responses”.

BHL appealed to the EAT, who held that the Tribunal had erred in substituting its own view for that of BHL. The Tribunal’s finding that the falsification of company records was less serious than the other forms of gross misconduct was unjustified and the EAT substituted a finding of fair dismissal.

Ms Tayeh appealed to the Court of Appeal, who upheld the decision of the EAT and agreed that Tribunal had made an error in substituting its own view of the seriousness of the offence. The role of the Employment Tribunal was to determine whether the employer’s decision to dismiss fell within the band of reasonable responses, which a reasonable employer might have adopted and not whether it would have dismissed the employee, had it been in the employer’s shoes. The Court also acknowledged the importance of a Care Home being able to rely on medical records when dealing with elderly and vulnerable residents.

This case demonstrates the benefit of having a comprehensive policy containing a list of the types of conduct that will be likely to constitute gross misconduct. Indeed, an Employment Tribunal will find it difficult to determine that an employer has acted outside of the band of reasonable responses if the employer is able to show that the employee’s conduct constitutes gross misconduct within the meaning its Handbook, and explain why this type of conduct is deemed to be so serious within its organisation.

In Onyango v Berkeley (t/a Berkeley Solicitors), the Employment Appeal Tribunal considered whether a disclosure made after the employment has terminated could still be a protected disclosure under the whistleblowing provisions of the Employment Rights Act 1996.

Having ended his employment with Berkeley Solicitors, Mr Onyango wrote a letter before claim to Berkeley (relating to his former employment) and he also made a complaint about them to the Legal Complaints Service.

Berkeley subsequently reported Mr Onyango to the Solicitors Regulation Authority, who investigated allegations that Mr Onyango was guilty of forgery and dishonesty.

Mr Onyango brought a whistleblowing claim in which he argued that Berkeley had subjected him to a detriment by reporting him to the SRA. He submitted he had made two protected disclosures in writing the letter before claim and the letter to the Legal Complaints Service and that he suffered a detriment as a consequence of these disclosures. The Employment Tribunal rejected Mr Onyango’s claim on the basis that a post-termination disclosure could not be a ‘protected’. Mr Onyango appealed.

Citing the case of Woodward v Abbey National Plc [2006], the EAT allowed the appeal. It determined that, since a detriment occurring after termination would be covered, it followed that a post-termination disclosure could be ‘protected’. Indeed, the EAT could see no reason for limiting the ability to make a protected disclosure to the duration of the employment relationship.

Employers should be very careful as this highlights that the whistleblowing provisions extend post employment.

If you have any questions relating to this article, please contact

Sejal Raja
e: sejal.raja@rlb-law.com
t: 020 7227 7410


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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