The Employment Appeal Tribunal (EAT) has held in Buzolli v Food Partners Ltd UKEAT/0317/12 that an employer's decision to dismiss an employee for gross misconduct was fair, notwithstanding defects in the procedure adopted. 

Mr Buzolli was employed by Food Partners Limited. He was given a final warning for failing to attend work due to being under the influence of alcohol. That warning was to remain live for 12 months and within that period, Mr Buzolli drove his company vehicle into a bridge. Food Partners dismissed Mr Buzolli for gross misconduct. Mr Buzolli claimed unfair dismissal on the basis that Food Partners had failed to follow a fair procedure.

An Employment Tribunal will consider whether an employer had both a ‘fair reason' for dismissal and followed a ‘fair procedure' when deciding if an employee has been unfairly dismissed. Misconduct is one of the potentially fair reasons for dismissal.  To determine if a fair process has been adopted for misconduct dismissals, a Tribunal will consider the ACAS Code, which provides that an employee who is given a final written warning should be told the consequences of further misconduct. The final warning to Mr Buzolli had not contained a statement that further misconduct during the 12 month ‘live' period might result in dismissal.

However, the EAT considered that it was clear from Food Partners' disciplinary policies and as a matter of common sense from the fact that this was a final written warning, that further misconduct might result in dismissal.  While it is always preferable to follow the ACAS Code to the letter, this decision should comfort employers that minor deviations from the Code will not necessarily result in a finding of unfair dismissal.