Considering past misconduct of an Employee

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The employee had received a written warning for failing to obey reasonable management instruction.

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In a recent case Employment Appeal Tribunal the panel were asked to consider whether an employee’s previous warnings for misconduct, could be considered should a further act of misconduct be committed.

The employee had received a written warning for failing to obey reasonable management instruction. Within the same timeframe, the employee was again called in for a disciplinary for a severe breach of health and safety as they drove a lorry through a red light in a loading bay. Due to the nature of this action, coupled with the fact that a previous disciplinary for misconduct had been issued, the employee felt that the employee could be dismissed for gross misconduct.

The employee took the matter to a Tribunal claiming that the Employer had acted unfairly as they should not have considered the previous decision as it was not a related issue, in this later disciplinary sanction. The employer agreed that they would have, if the second incident had been a standalone offence, only issued a final written warning, however this was elevated to instant dismissal due to the previous conduct of the employee.

The Tribunal sided with the Employee as the two incidents were not connected and as such should not be viewed together. This was appealed by the employer who overturned the ET’s decision and stated that this was not an issue of similarity. It referred to the ACAS Code of Practice and stated that it does not require similarity of offences to justify the dismissal. Further the EAT ruled that previous disciplinary action should only be disregarded if it has been issued incorrectly (i.e. incorrect procedure has been followed), or issued in bad faith (without merit).

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