Employers have to ensure that they follow a fair and proper process when looking to take disciplinary action in relation to the conduct of their employees.
Some acts are so serious that they would justify an immediate dismissal, through a proper process on the basis that they are acts of gross misconduct, but an employer may also dismiss where an employee is guilty of a further act when they are already on a final written warning. However, it is important for employers to ensure that they have followed a proper process in reaching that stage, that the warning is a relevant warning and crucially, that the warning is still a valid one and not time expired.
Last year in a decision of the Inner House of the Court of Session, (Diosynth Ltd v. Thomson), it was held that where a warning had expired at the time of another act of misconduct, the employer could not rely upon that final written warning. The dismissal was unfair.
More recently, this decision has been challenged in an English Employment Appeal Tribunal (EAT) case (Airbus UK Ltd v Mr M G Webb). The employee was one of a number of employees who had been disciplined for not working. The others were not dismissed but he was because he had been given a final written warning, the employer took that into account in not mitigating the dismissal to a final written warning. This was ruled to be unfair because the length of the warning had expired at the time of the following act of misconduct.
The EAT was sympathetic to the employer but there was a fundamental view that warnings that were expired had to be ignored for all purposes. So it is not just on a totting up process but also in relation to mitigation as in the Airbus case. In addition, the EAT was at pains that it should not follow a different path to that in the Diosynth case, so creating different law in Scotland to England and Wales.
Interestingly the Court left open the possibility that the employer could draft procedures that would allow expired warnings to be considered in exceptional circumstances.
Employers need to be alert to the position when taking action and should seek advice where they wish to rely upon previous warnings, either for totting up purposes or in relation to mitigation. Professional help should also be sought in the drafting and reviewing of disciplinary policies and procedures.
Further information on the changes will be available on this web site shortly. In the meantime if you need assistance with regard to contract changes contact Qdos Consulting on 01455 850000 or contact jstringer@qdosconsulting.com
|
