In August 2010 the claimant in Rooney v Dundee City Council, a cashier supervisor for the Council, was involved in an incident where she had disregarded an express instruction from a senior employee.  She had paid in a large cheque from a member of the public despite being told to wait for money laundering clearance, apparently because she had taken the view that it would better serve the Council if she took the money rather than letting him carry out his threat to leave if there was going to be a delay.  Following a disciplinary hearing in September 2010 she received a final written warning which was to stay on her record for 15 months.  She appealed against that but, although two dates for hearings were set, they did not go ahead because of unavailability/severe weather and no appeal was ever heard.

A further incident took place in December 2011, just before the 15 months was up.  Following an argument about a shift rota, the claimant failed to follow instructions given to her to "cash up" by the end of the day, with potentially (although not, as it turned out, actual) serious consequences.  A disciplinary hearing was heard in March 2012, following which she was dismissed.  The person conducting the hearing was aware of the previous final writing warning and that the appeal had not been determined.  The claimant appealed against the decision to dismiss but the decision was confirmed on appeal.

The EAT upheld the Tribunal's finding that the dismissal was not unfair.  There was no reason for the Tribunal to hear evidence on the reason for the imposition of the first final warning as there was nothing to indicate that it was manifestly inappropriate or in any way invalid.  The Tribunal had considered the fairness of the dismissal, including the fact that there was an appeal outstanding, and had concluded that both the decision to dismiss and to do so without hearing the appeal were decisions which a reasonable employer could have reached.

The EAT in Rooney confirmed that the guidance for misconduct dismissals where there have been earlier warnings, set out in by the EAT in Wincanton Group PLC v Stone, should be followed.  Wincantonwas a case where the employer had taken into account a previous warning which was not in respect of similar conduct and was the subject of an on-going dispute.  The EAT's guidance is:

  • assuming the earlier warning is valid, then a tribunal (and hence an employer) should take it into account; but
  • an employer aware of the fact that the validity of a warning is being challenged in other proceedings (typically an internal appeal, but any other proceedings as well) is expected to take account of that fact;
  • the tribunal can take into account the fact or circumstances giving rise to the warning, including whether it was for similar conduct, but (unless it is invalid) should not go further and examine whether the warning should have been issued; this would be "going behind" the warning, which it is not entitled to do;
  • the tribunal can take into account the employer's treatment of similar matters for other employees.