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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Final written warnings
14 April 2014

Can a tribunal look at the reasonableness of a final written warning when assessing the fairness of a later dismissal? The Court of Appeal discussed this issue in the case of Adegobola v Marks & Spencer Plc.

Facts

'A' was employed as a customer assistant at the respondent's Wimbledon store. In July 2010 she was involved in an incident with another staff member. After an investigation and disciplinary hearing, she was given a final written warning and it was explained that any further incidents of misconduct could result in her dismissal. Although she appealed the decision, it was out of time and M&S refused to hear her appeal. Three months later, A had an argument with her manager and became very loud and aggressive towards her. During the respondent's investigation into this alleged incident of misconduct, the Investigation Officer was informed that A was abusing her staff discount card. This new allegation was put to A during the investigation to which she admitted. A signed the Investigation Officer's notes of the meetings to say they correctly represented what had been discussed and her admission. In the subsequent disciplinary hearing, A sought to deny her earlier admissions but could not explain why. The Disciplining Officer concluded that A had been disrespectful to her manager and had also been abusing her discount card. The latter incident was found to be an act of gross misconduct alone. A was therefore dismissed. Despite A's appeal and allegations of 'victimisation' on the part of her managers, the original decision was upheld.

Unfair dismissal

A brought an unfair dismissal claim on the basis that the disciplinary process and therefore the final written warning issued in July 2010 had been unfair. Both the Employment Tribunal and Employment Appeal Tribunal found against her. They held they did not have jurisdiction to decide if the first warning was fair but, while it would have been better practise to have used two different officers at the second disciplinary hearing from those used at the first, any defects in procedure were cured by the appeal. A then appealed to the Court of Appeal on the basis that the Appeal Officer's investigation was "irregular" and that the EAT had overlooked rules of natural justice in finding it had no jurisdiction to decide if the first written warning was fair or not.

Can an employment tribunal decide if a final written warning is unfair?

The Court of Appeal held that whilst an Employment Tribunal did have authority to look at the fairness of the dismissal process as a whole – and this included a consideration of whether the initial final written warning was fair. However, they did not consider it necessary to look in depth at the fairness of the process in this case as there was clear evidence (an admission in the minutes, signed by the A) that she had committed an act amounting to gross misconduct. Therefore, M&S was justified in dismissing her, regardless of any earlier possible defects in the process. A's appeal was rejected and she was ordered to pay M&S costs of £1,600.

Summary

This case highlights the importance of following a fair disciplinary procedure - from first written warning to dismissal. The principles of natural justice enshrined in the ACAS Code of Conduct are as relevant to dismissals as they are to written warnings. All employees should know the allegations against them, be able to state their case and be given the right of appeal against any warning.

One important point to note was the allegation that the investigation officer and disciplining officer were the same in both the initial final written warning in July 2010 and the subsequent dismissal in November 2010. Whilst we advise having different personnel as investigator, discipliner and appeal officer, being able to offer different personnel at different disciplinaries might also be advisable, particularly, where the time between offences is relatively short. However, in all cases, the right of appeal is essential in seeking to 'right the wrongs' of an earlier procedural defect. It will be important to be able to demonstrate that a fair process was carried out at each stage and that none of the links in the disciplinary chain are faulty.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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