The claimant in Appiah v Compass Group UK & Ireland Ltd was given a final written warning after she refused to comply with a management request to do work at a different site. She did not appeal against the warning and was later dismissed after a further misconduct offence (taking unauthorised leave). The final written warning, which was still live, was taken into account in that dismissal. The claimant was represented by her union at the disciplinary hearing but no point was taken about the final written warning. However, at the internal appeal against her dismissal, her solicitors did complain about it on her behalf.
The Employment Tribunal and EAT both concluded that the claimant's dismissal was not unfair. Where an employer is faced with a claim by an employee, at a late stage in the disciplinary process, that an earlier sanction ought not to have been imposed, there are limits to the extent to which the employer can be expected to revisit what took place at that earlier stage. If an issue of bad faith, lack of grounds for the warning or obvious impropriety is raised then the employer may be required to revisit the warning. And if any complaint is made about the imposition of an earlier warning, the employer would be expected to look at the basic documents on file to check whether there is anything inappropriate about reliance on that warning.
On the facts of this case, it was not reasonable to expect the employer to reinvestigate witnesses from the earlier disciplinary process but the appeal officer could be expected to look at the file to see whether there was anything which made it inappropriate to rely on the warning. The appeal officer had done this – he had adjourned the appeal to investigate the points made by the claimant, one of which was the imposition of the warning.