The Employment Appeal Tribunal (EAT) has held that an employer was entitled to take into account an earlier similar incident involving the employee as 'background' when deciding whether to dismiss for a subsequent incident – even though no formal warning was given to the employee for the first incident.
The EAT's decision is helpful to employers as it shows that pre-warning an employee about the consequences of their conduct, even informally, can help justify dismissal for gross misconduct if that conduct is repeated. However, this will only be the case if the employee's subsequent conduct is in itself serious enough to constitute an act of gross misconduct justifying a dismissal.
Therefore, it is still advisable to formally discipline an employee for any serious incident to ensure that it can be taken into account in respect of any subsequent disciplinary action. This is particularly important when a further similar incident does not constitute gross misconduct as the employer will need to rely on the previous formal warning to justify dismissal, i.e. the employer is not able to "roll up" two or more less serious incidents to justify a charge of gross misconduct.
In the case of London Borough of Brent v Fuller, Mrs Fuller worked as an administrator in a Community Special School (the School) for pupils who suffer from social and emotional difficulties. It was accepted that the pupils were disruptive on a daily basis.
In May 2007, Mrs Fuller saw a pupil being restrained by staff and intervened by saying in the presence of the child, that the staff should leave him alone and 'have mercy'. The head teacher immediately informed Mrs Fuller that she was not to interfere in matters of discipline or the application of behavioural restraint.
In October 2007, another incident involving a pupil being restrained by staff was witnessed by Mrs Fuller. However this time the pupil's behaviour was more serious and had already resulted in one teacher being injured. In addition, Mrs Fuller's intervention was also more serious, she told staff they should stop, that they were hurting the boy and did not care about him and that one teacher's restraint was 'sexual'. As a result, Mrs Fuller was suspended and subsequently dismissed for gross misconduct in respect of the October incident. Her internal appeal against the decision to dismiss her was unsuccessful. The School took into account the previous (informal) warning given to Mrs Fuller by the head teacher in May, not to intervene in matters involving behavioural restraint.
Mrs Fuller brought a claim of unfair dismissal to an Employment Tribunal which upheld her claim. The London Borough of Brent appealed. The EAT upheld the appeal and overturned the Employment Tribunal's decision. First, the EAT ruled that the Tribunal had incorrectly substituted its own view when reaching its decision, rather than deciding what a reasonable employer would have done. Secondly, the school were entitled to take into account the fact that Mrs Fuller had been alerted by the informal warning following the incident in May, that she should not intervene in matters of behavioural restraint – yet she intervened again in a subsequent incident a few months later.
However, the EAT made it clear that the informal warning was no more than 'background' to the October incident for which Mrs Fuller was dismissed.