- Employers should consider whether there are any serious concerns about the appropriateness of a live, final disciplinary warning before relying on it to dismiss for subsequent misconduct.
An employer's absence procedure specified that warnings would be given after a certain amount of absence at a meeting attended by a member of HR, which was responsible for auditing absence levels. By mistake, a final warning was given when the level of absence was insufficient, in the absence of a member of HR. The mistake was only discovered when the employee brought a tribunal claim following his subsequent dismissal for further absence.
The EAT ruled that, in view of the employer's size and resources, it should have complied with its internal procedural requirement for a member of HR to attend the meeting. Had it done so, the final warning would not have been issued. Giving a warning without this safeguard was manifestly inappropriate and the subsequent dismissal unfair. (Sarharkar v Northern Foods, EAT)
If a warning is manifestly inappropriate, the fact that the employee has not appealed it will be irrelevant to the fairness of the subsequent dismissal. This is all the more so where the reason for the failure to appeal did not involve any express or implied admission that the original allegations were true. (Davies v Sandwell MBC, EAT)
- Employers may not need to follow a disciplinary procedure when dismissing for breakdown in relationships caused by the employee's conduct
Where an employer's real reason for a dismissal is an irretrievable breakdown in working relationships, and not the employee's misconduct in causing the breakdown, this will be a dismissal for "some other substantial reason" rather than misconduct. The employer is therefore not required to abide by its disciplinary procedure (which in this case was contractual). (Ezsias v North Glamorgan NHS Trust, EAT)
Employers in similar situations should carefully analyse what their real reason for dismissal is and follow a procedure appropriate to that.
- Employer's policies on how employees use emails and other social media should apply to activities that could damage the employer's reputation even if carried out on home computers. Employees should be warned of the danger of forwarding chain emails.
A recent tribunal case ruled that it was fair to dismiss an employee for damaging the employer's reputation by forwarding an offensive chain e-mail from his home computer to the home computer of a key client's employee, who then sent it on to another employee of the client at work. Prevention is better than cure, so it is worthwhile ensuring IT policies clearly cover such conduct.
Rights to privacy were not relevant, as the tribunal considered that the e-mail was clearly not intended to be private given that it included an instruction to pass it on. The employee was therefore aware it was likely to be forwarded and had no control over what the recipient did with it. (Gosden v Lifeline Project Ltd, ET)