In the recent case of Wincanton Group plc v Stone (2012), the Employment Appeal Tribunal (EAT) had to consider whether an Employment Tribunal had made an error of law in finding that the dismissal of Mr Stone was unfair. In this case, Mr Stone was a driver who had been issued with a first written warning for refusing to obey a reasonable management instruction. He appealed against the decision on the basis that he said the employer had no contractual right to give that instruction. The appeal was rejected.
Subsequently, but whilst the first warning was still valid, Mr Stone breached health and safety rules whilst manoeuvring a vehicle. This was considered by the employer as a serious issue who would normally deal with such breaches by way of a final written warning. However, because of Mr Stone’s previous warning, he was dismissed. He claimed unfair dismissal.
The Employment Tribunal found the dismissal unfair. They did this on the basis that they felt that the first warning, whilst issued in good faith by the employer, should not have been given as they felt it was not justified, and second because there was no similarity between the two offences. The company appealed to the EAT. The EAT upheld the appeal and remitted the case back to a different Employment Tribunal to rehear the case. They did this for two reasons. The first was that the Employment Tribunal had no right to look behind the reasons for the first warning, provided that it was issued in good faith. That was something they had found as a matter of fact. The second reason was that the Tribunal was wrong to look at the question of the similarity of the two offences. This was not relevant and is not something required in the ACAS Code of Practice on Disciplinary and Grievance Procedures.
This case gives welcome clarification to the question of whether warnings have to be for similar incidents in order to be counted together under a disciplinary process. We have always taken the view that they do not, but this view has not previously always been accepted (including by this Employment Tribunal).
We are experienced in talking both employers and employees through disciplinary matters. If you need advice, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).