The Employment Appeal Tribunal (“EAT”) has held that tribunals may not look “behind” earlier warnings given when deciding the fairness of a dismissal based on accumulated disciplinary warnings. The only time an employer may investigate an earlier warning is if it is satisfied that the earlier warning was issued in bad faith or was manifestly inappropriate.

In this case the claimant was a lorry driver and was dismissed on grounds of misconduct following a serious riving accident, having already had a written warning for different misconduct. The tribunal said that the dismissal was unfair, since the claimant had challenged the earlier warning, though it was found to still be valid. The EAT then overturned this finding of unfair dismissal and set out the following guidelines for dismissals involving accumulated warnings:

  • Tribunals should take into account the fact of an earlier warning.
  • Tribunals should consider any proceedings which could affect the validity of a warning (eg an internal appeal) and take into account the weight given by the employer to any challenge before dismissing.
  • Tribunals should not look “behind” any earlier warning to consider its validity unless satisfied that to do so is necessary.

Employers may however consider the factual circumstances giving rise to a warning, eg whether the types of conduct resulting in the initial warning and ultimately the dismissal were similar or not.

Key Point: The overriding question for a tribunal considering unfair dismissal is the reasonableness of the employer’s act of treating conduct as a reason for dismissal. Tribunals should not look behind earlier warnings when considering the ultimate reason, unless there is an obvious reason for doing so.

Wincanton Group v Stone