The Relevance of Previous Warnings

Employers often justify an employee’s dismissal where a further act of misconduct is committed at a time when a final written warning remains live.

In Rooney v Dundee City Council, the employee had appealed against a final written warning that was imposed as a consequence of the employee having failed to follow instructions in relation to cash handling.

The appeal was never dealt with however, and was seemingly forgotten about by both parties. When the employee committed a similar offence some time later, the Council sought to justify her dismissal by reference to the final written warning that remained live at the time of her subsequent conduct.

The Tribunal decided that the dismissal was fair, and that the Council’s actions fell within the band of reasonable responses. Whilst the dismissing officer at the time knew of the earlier unresolved appeal, the misconduct subject to the final written warning was admitted as a fact. Additionally, the employee did not chase an outcome to the appeal process.

Whilst the Tribunal accepted that the outcome was undeniably harsh, it was not so harsh that it fell outside the band of responses open to a reasonable employer.

Whilst the decision may be of limited use to employers going forwards, it should be noted that the Tribunal did state that the appeal against the final written warning should have been heard before a decision on the dismissal took place.

The decision does not therefore give employers free reign in this respect. Much will depend on the specific facts and circumstances of the subsequent disciplinary case, the extent to which the employer relies on the previous incomplete appeal, and the impact that a completed appeal would have had.

Good practice however would be to ensure all appeals for previous warnings are dealt with in a timely manner.

In light of the above points, it would clearly be easy to read too much into the significance of the case moving forwards.