In the relatively recent case of Airbus v Webb (2008) it was established that expired warnings can be taken into account when deciding whether to dismiss. However, if a warning is not even issued in respect of an incident, can that incident still be relied on? In other words, if we have mucked it up by not following a proper process before, can we still rely on what happened, please? Pretty please?? The case of London Borough of Brent v Fuller says 'yes'.
Mrs Fuller was an administrator in a school for children with social and emotional difficulties. In May 2007 she intervened when teaching staff were restraining a difficult child and was told immediately by the Head Teacher not to interfere in matters of discipline or behavioural restraint. No further formal discussion or disciplinary action about the incident took place and we are guessing you can see what's coming. Yep, that's right, it happens again. Roll on October 2007 and a similar but more serious incident occurs. Mrs Fuller again intervened, resulting in her dismissal for gross misconduct, including "repeated and inappropriate intervention into behaviour management issues" and "failure to follow reasonable management instructions". In reaching its decision to dismiss, the school took into account that, because of what had been said to her at the incident in May, Fuller knew that she was not to interfere when the October incident occurred.
Whilst the employment tribunal found in Fuller's favour, the EAT disagreed and overturned the decision. The first incident was part of the relevant background to the later incident for which the employee was dismissed. The EAT went on to remind us that all relevant circumstances to an incident should be taken into account when considering whether to dismiss.
Therefore, in summary, when deciding whether to dismiss for gross misconduct, you are entitled to take into account a previous similar incident for which no formal warning has been given. It was important that the incident was similar since this clearly evidenced that Fuller was well aware that she not to intervene. That said, best practice would have been to at least issue a verbal warning and keep a record of it on her personnel file. This is therefore one of those cases that may help when it has gone a bit wrong.