The Employment Appeals Tribunal has confirmed that there is no obligation on an employer to move from a final written warning to termination when disciplining an employee for a further disciplinary offence.

Mr Caffrey worked as a sales assistant in a shop owned by Maxi Zoo Ireland Limited. Maxi Zoo engaged “mystery shoppers” to assess employees. In December 2010, Mr Caffrey was the subject of a mystery shopper’s assessment and scored 31%. This score was significantly lower than the 95% score expected of employees. Following this assessment, Maxi Zoo applied stage three of a five stage disciplinary process and gave Mr Caffrey a formal written warning.

Mr Caffrey faced a further mystery shopper assessment in August 2011 and recorded a score of 70%. While much improved on his previous score, it did not reach the required standard and, as a result, Mr Caffrey was given a final written warning.

Subsequently, Maxi Zoo became aware of a failure by all staff and management to ensure that all out of date stock was removed from shelves within the shop. Disciplinary action was taken against all staff and management, including Mr Caffrey. As Mr Caffrey was already on a final written warning, Maxi Zoo believed it “had no alternative” but to apply the next stage of the disciplinary process and dismissed Mr Caffrey.

The Tribunal rejected Maxi Zoo’s understanding of the options open to it. It stated that while Mr Caffrey may have been on a final written warning there was no obligation on Maxi Zoo to move to termination. It was, according to the Tribunal, open to Maxi Zoo to give a further written warning.

This case serves as a reminder to employers that at each stage of the disciplinary process, but particularly where dismissal is an outcome, the sanction imposed must be proportionate in the circumstances.  What stage the employee is at in the process should not be the decisive criterion.