The claimant in Wincanton Group PLC v Stone, a lorry driver, was dismissed following a serious driving accident where he pulled out of a loading bay contrary to the traffic signalling system.  A colleague was injured in the incident.  The claimant was at the time subject to a first written warning for earlier alleged misconduct and it was the existence of this warning that tipped the balance between the sanction of a final written warning and a dismissal. 

However, the earlier warning was given in relation to a completely different issue.  The Employment Tribunal had concluded that the claimant's dismissal was unfair because the first warning was not in respect of similar conduct and, in any event, should have been regarded as held in abeyance since there was a separate and on-going collective dispute about it. The EAT disagreed, and set out helpful guidance with regard to misconduct dismissals where there have been earlier warnings. 

Assuming the earlier warning is valid, then a tribunal (and hence an employer) should take it into account but:

  • An employer aware of the fact that the validity of a warning is being challenged in other proceedings (typically an internal appeal, but any other proceedings as well) is expected to take account of that fact.
  • The tribunal can take into account the fact or circumstances giving rise to the warning, including whether it was for similar conduct, but (unless it is invalid) should not go further and examine whether the warning should have been issued; this would be "going behind" the warning, which it is not entitled to do.
  • The tribunal can take into account the employer's treatment of similar matters for other employees.

In other words, the question is whether the employer is entitled to rely on the warning, not whether the warning was justified.  This means that the focus is on the employer's actions and not on those of the employee.  So, where an employer has given a warning in good faith, the view of a tribunal as to whether it should have been given, is beside the point.