Tribunal erred in considering the fairness of a previous warning

The Employment Appeal Tribunal held in Perrys Motor Sales Ltd v Edwards that an Employment Tribunal had erred in evaluating an earlier final written warning when deciding whether a dismissal for subsequent misconduct was unfair.

A service manager at a Vauxhall car dealership owned by Perrys Motor Sales Ltd was dismissed on grounds of misconduct following an issue with a used car that had a faulty gearbox.  Vauxhall had agreed to cover 80% of the cost of the works provided that a claim for that amount was made within 45 days of the work being completed.  The employee fraudulently entered false dates in order for the claim to be submitted in time.  When deciding whether to dismiss the employee, the employer took into account the fact that the employee had received a final written warning in 2014 in respect of similar misconduct.

The Employment Tribunal (the Tribunal) found that the decision to issue a final written warning in 2014 was not within the range of reasonable responses and that issuing that warning was consequently unfair.  Therefore, as the employee was partly dismissed on the basis of that warning, the dismissal was unfair. 

The employer appealed to the Employment Appeal Tribunal (the EAT) and the EAT held that the Tribunal had erred in making such a finding as the validity of the warning had not been raised as an issue before the Tribunal.  Moreover, in the EAT’s view, the Tribunal had applied the wrong test: a previous warning could only be considered when deciding an unfair dismissal case where the warning itself was manifestly inappropriate or issued for an “oblique motive”.

The employer’s appeal was therefore allowed and the case was remitted to a different tribunal for a rehearing.

Comment
This is a further confirmation of the extent to which Tribunal decisions are grounded in process. The substantive fairness of an earlier warning will not make a later dismissal unfair unless the earlier warning was issued in bad faith or was otherwise manifestly inappropriate.

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Stephanie Dale, Kerry Garcia

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