Housekeeper’s failed appeal provides final warning reassurance
The EAT has provided reassurance to employers that dismissing for further misconduct will usually be fair, where there is a current final warning.
The Employment Appeal Tribunal has provided reassurance to employers that dismissing for further misconduct will usually be fair, where there is a current final warning. In Trye v UKME the EAT has upheld a Tribunal’s finding that the dismissal of a housekeeper was fair, even though the final misconduct was not itself serious.
The facts of this case read rather like a modern-day Downton Abbey. Ms Trye was a housekeeper in a London property. The company who employed her ran 200 premises with over 400 permanent staff (and many more seasonal employees) for a prominent family who liked to visit their various properties in the UK during the summer months. She was given a final written warning for failing to follow instructions/procedures and acting in a way which brought the company into disrepute, after attending at the property contrary to instructions when residents were present. Almost a year later, and after an initial period of certificated sickness absence, Ms Trye was absent for four days without a medical certificate and without following the correct procedure for reporting absence. She was dismissed for this even though it was not very serious in itself, because she had the final written warning. The Employment Tribunal held this dismissal was not unfair, and the EAT have confirmed they were able to do so.
The EAT Judgment states that gross misconduct is not necessary for a dismissal to be fair, and emphasises that a final warning is clearly relevant to whether an employer’s decision to dismiss falls within the range of reasonable responses. Notably it goes as far as to say “if there is a final warning that is current under the terms of the employee’s contract of employment, it is only in exceptional circumstances that further misconduct will not be met with dismissal”. The employer was able to take into account a final warning which, whilst not about absence, arose in part from a failure to follow procedures. The EAT also had no concerns about the employer taking the final warning into account when it had expired by the date of the hearing (when the further misconduct occurred whilst the final warning was in place).
What does this mean for me?
This Judgment reassures us that misconduct which on its own would not be fairly dismissible, can result in a fair dismissal when there is an existing final written warning. It does highlight some of the areas to be careful about: is the new issue something to which the final warning is relevant/can be relied upon; is the final warning current; and was the final warning issued in good faith with prima facie grounds for making it? If the answer to these questions is yes, then the EAT says dismissal for further misconduct should be capable of being fair.
Sometimes we are asked to advise on cases where dismissal is harsh or potentially outside the range of reasonable responses, when we will often be told that a final warning is not worthwhile. This Judgment demonstrates that where a final written warning is imposed, it can provide a strong basis for fairly dismissing at a later date, even if the next misconduct is not itself that serious. Do take advice and remember that the employee will be entitled to notice (or pay in lieu), but such a dismissal can certainly be fair.
If this case raises any issues for your organisation, please speak to your usual contact in the Weightmans employment pensions and immigration team (or Phil Allen on firstname.lastname@example.org).