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    Can previous (mis)conduct be relevant to a dismissal?

    You’ve already told an employee not to do something as you find it unacceptable.  A few months on and they’ve done it again!  Enough is enough and you want them out.  But can you take their earlier misconduct into account?

    We told you about that before!
    Suppose that a few months ago you verbally warned an employee not to do something, but you didn’t go as far as putting it on a more formal footing, i.e. via disciplinary action.  Some time down the line and they’ve ignored what you said and done exactly the same thing again.  Can you rely on your earlier warning if you decide to dismiss?

    Asking the question
    This was the very question that the Employment Appeal Tribunal (EAT) had to consider in the recent case of London Borough of Brent v Fuller 2010.  Ms Fuller (F) was an administrator at a school that catered for “problem” children.  When other staff (including the head teacher) were trying to control a pupil who was screaming and shouting she tried to intervene telling them to “have mercy on him” and “leave the boy alone”.

    Please, butt out!  The head teacher told F “not to interfere” when staff were trying to restrain unruly pupils.  She also said “I will discuss this matter with you later”, although this conversation never actually took place.

    In one ear, out the other
    A few months later the head teacher and another worker were trying to restrain a pupil who was kicking.  F saw this incident and told them to stop: she believed they were hurting him.  The head teacher told her to leave but F disobeyed this instruction and stayed put.  The pupil realised he had an ally and became even more violent.  After the head teacher restored order, F was told to go home and that she would face disciplinary action.  

    Sacked for gross misconduct
    F refused to attend the disciplinary hearing and was dismissed for gross misconduct.  As far as her employer was concerned her dismissal was justified because she had previously been instructed not to interfere when staff were restraining pupils.  F then issued a claim for unfair dismissal.

    Tribunal decision.  Now you may think that F lost at the tribunal – what’s more reasonable than dismissing an employee who refuses to obey your instructions?  But the tribunal thought otherwise.  It said that a “reasonable employer” would not have taken the earlier event into account.

    Appealing this ruling
    The employer appealed to the EAT and won.  It felt that not only was the second incident gross misconduct, the earlier one was entirely relevant.  It then went even further by saying that employers can take into account anything which has led up to a dismissal, even warnings which have expired.  We looked at this area in a previous article (yr.10,iss.6,pg.2, see The next step).
    Tip 1.  Despite this helpful ruling, we would advise you not to go too far back when relying on previous misconduct that hasn’t resulted in a formal written warning, e.g. no more than six months.  Also, it must be closely related – if not identical – to the misconduct which has led to the dismissal.
    Tip 2.  If you tell an employee that you’ll “speak to them later” always follow your warning up formally, otherwise they might not take you seriously.

    The Employment Appeal Tribunal has recently said than an employer can take anything into account which has led to a dismissal, even expired warnings.  But to be on the safe side, don’t go back too far, e.g. more than six months, and ensure that all the misconduct is closely related, if not identical.

    “Tips & Advice Personnel”: 11.11.10