Once disciplined, is it truly forgotten?Posted in : HR Updates on 25 June 2019
A recent Tribunal case highlights the importance of following disciplinary procedures and looking at the validity of a previous final written warning. In this article Victoria Smith looks at the details of the case and what employers can learn from it.
Beattie v Condorrat War Memorial and Social Club and others
Mrs Beattie was employed by the Social Club as a Bar Steward. In May 2015, a stock shortage of alcohol was identified and Mrs Beattie was asked to meet with the Executive Committee to discuss the matter on 2nd July 2015. She offered no explanation to the committee and was issued a final written warning on 9th July 2015. Mrs Beattie appealed this decision and in doing so, she accepted “part responsibility” for the stock shortage and offered to pay back the cost of the missing order. This offer was not taken up and she was later advised that her appeal had been unsuccessful and the final written warning would remain in place for 12 months.
In November 2015, Mrs Beattie then informed members of the committee that she was unwilling to sell function tickets behind the bar as she was concerned about money potentially going missing when she was responsible for the tickets. Mrs Beattie was asked several times to sell the tickets but continued to refuse to do so. She was subsequently suspended on full pay to allow investigations to be carried out.
On 24th December 2015, at an Executive Committee meeting, it was decided that Mrs Beattie should be dismissed. This was confirmed in writing on 29th December 2015. She appealed and was unsuccessful. Mrs Beattie brought a claim for Unfair Dismissal, challenging the earlier final written warning due to a lack of investigation by her employer.
The employee’s position was that the final written warning had been deeply flawed – it was unduly harsh, there had been no proper investigation of the issues, and the offence did not amount to “serious misconduct” in terms of the employer’s policy.
The Tribunal held that as the proper procedure had not been followed and a disciplinary hearing had not been held, that the dismissal was indeed unfair. However, the Claimant’s compensatory award was reduced to nil on the basis of a “Polkey” assessment, meaning that had a fair process been followed, there was a 100% chance that she would have still been dismissed in any event.
Mrs Beattie appealed this decision and contended that it was she herself who had carried out the investigation into the missing stock, and when she could not identify the cause, her employer had not undertook its own investigation to ascertain what, if any, amount of fault could be attributed to Mrs Beattie.
The previous decision was upheld by the Employment Appeal Tribunal (“EAT”). The EAT reiterated that the test for whether an employee can, in an unfair dismissal claim, challenge an earlier warning, is whether the warning was “manifestly inappropriate”, which is a high threshold to reach. In this case, although there had been no formal investigation of the allegations against Mrs Beattie, it was deemed to be less significant as the employee had admitted some responsibility for the offence that led to the warning, and in all the circumstances it could not be said that the warning was “manifestly inappropriate”. It had not been issued in bad faith, and there was at least a prima facie basis for the warning.
As such, Mrs Beattie's appeal was dismissed, and the reduction to the compensatory award was not amended.
This case was an interesting example of the Tribunal's ability to find a dismissal was unfair, but to reduce compensation (in this case, 100% of the compensatory award) on the basis that the unfairness was simply due to a procedural fault and had a fair procedure been followed, the Claimant would inevitably have been dismissed in any event.
This is a reminder to employers to ensure that proper investigations are undertaken when taking disciplinary action – particularly where that disciplinary action could lead to dismissal.
While this case confirms that it will be difficult for an employee to challenge reliance on an earlier warning, it may still be possible to do so. Earlier decisions by an employer will generally not be reopened by a Tribunal unless the previous warning was so unreasonable that it would have been “manifestly inappropriate”. Employers should therefore ensure that there is a proper basis for any warning that is issued and that a proper procedure has been followed if it is leading to dismissal.
It is essential for employers to have disciplinary procedures in place detailing the steps that will be followed. Not only will this ensure that everyone within the Organisation is aware of the process, but it is also a legal requirement for employers to have such procedures in place.
This case is also a helpful reminder of the principles of Polkey reductions and that a Claimant’s contributory fault will be taken into consideration by a Tribunal. Whilst in this instance, the employer did not have to pay any compensation award, the cost and stress of a Tribunal claim was one that they could have potentially avoided had they followed a fair process.
A link to the full Beattie v Condorrat War Memorial and Social Club and others case is below:
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