The claimant in Disotto Food Ltd v Carlos Santos was employed as a factory and warehouse manager at a foodstuffs company.  Before his dismissal for misconduct he had been given three warnings about his conduct:

  • 16 July 2009: a warning lasting twelve months for, among other things, failing to follow instructions (allowing the factory team to be late on site).
  • 9 July 2010: a warning lasting six months for failure to arrange for stocking of a product in sufficient time.
  • 3 November 2010: a 12 month warning (to remain on his file from 8 December) following an unresolved allegation that he had failed to comply with an instruction from the managing director (that an agency worker should not be allowed to return to work).

The final incident that led to dismissal was on 22 November 2010.  The warnings given in relation to the second and third incidents were still live at that time.  The allegation was that the claimant had failed to follow instructions given to him with regard to loading goods on delivery trucks and had not communicated his failure to do so back to the person giving the instructions.  He had loaded all the items apart from some banoffee pies which he was meant to get from a separate unit.  This time the claimant was warned that the consequence of the disciplinary hearing might be a final written warning or dismissal if the charge was proved.

After an investigation the claimant was dismissed for misconduct, the employer taking into account the previous incidents.  The Tribunal found that the claimant had been unfairly dismissed because the last incident was "so slight a matter" that no reasonable employer could reasonably contemplate dismissing an employee because of it, even when the previous disciplinary issues were taken into account, and therefore dismissal was not within the range of reasonable responses.

The EAT allowed the employer's appeal.  It was quite clear that the employer had relied upon the earlier warnings in its dismissal letter and it was entitled to do so.  The EAT described the Tribunal's comment that the earlier warnings had not in themselves justified the claimant's dismissal as irrelevant and made the point that it is the employer's view of the gravity of the final incident which matters, not that of the Tribunal.

This case does not make any new point of law but is confirmation that in a situation where there has been a prior warning, the test is whether it was reasonable for the employer to treat the misconduct, taken together with the warning, as sufficient to dismiss.  The ACAS disciplinary Code (which was not referred to in the EAT's judgment) does assume that a typical misconduct dismissal will be a further act of misconduct during the currency of a final written warning, but in this case it appears that the fact that there were two live warnings, albeit neither of them designated as final, was sufficient.