The sequence of events leading to the dismissal for misconduct of the claimant in John-Charles v NHS Business Services Authority was:

  • October 2012 – an incident occurred where the employee was alleged to be in breach of his employer's IT policies.
  • January 2013 – the employee received a first written warning for a separate matter – refusal to follow reasonable instructions.
  • 7 March – there was a disciplinary hearing on the October 2012 incident.
  • 13 March – the manager leading the disciplinary process wrote to the employee saying that it was being delayed because she thought there might be a health issue. 
  • 8 May – the manager indicated that she would issue a final written warning but then became aware of the January 2013 warning and took the decision to dismiss. She thought that the employee's unresolved outstanding appeal against this warning had lapsed.
  • 13 May – the employee was dismissed.

The Tribunal hearing the unfair dismissal claim decided that the fact that, in making the decision to dismiss, the employer took into account a warning for post-dated conduct did not make the dismissal unfair. A warning is relevant even if it is given after the date of the events leading to the dismissal. It was the substance of the matters that the warning related to, rather than the mere fact of a warning, that the employer had taken into account. The employer's reaction did not fall outside the permitted "range of reasonable responses". As to the existence of the claimant's outstanding appeal against this warning, again this did not affect the fairness of the decision because, given the time since the warning was issued, it was reasonable for the manager to assume that the appeal was no longer being pursued.

However, the EAT focused on another aspect – the information the employee had been given about the relevance of the warning. He had been told that the warning would not be flagged up to the dismissing manager unless and until she had decided that the October 2012 incident constituted gross misconduct. However, when this scenario did take place, the significance the warning had now assumed in terms of the sanction was not spelled out to him. In the EAT's view, this was a breach of natural justice. The fact that he had a right of appeal against dismissal didn't change this. He was entitled to an opportunity to make representations on what was in effect a decisive new turn in the case. As a result, the dismissal was unfair.   

One interesting side-line was the EAT's rejection of a claim that the dismissal was unfair because of inappropriate HR intervention – an argument raised in the Ramphal case earlier this year where the EAT found that the extent of HR's involvement in a disciplinary process could have been sufficient to render the claimant's dismissal unfair. Here, the EAT decided that HR had not overstepped the mark.