Can my Employer use the fact that I have a previous warning to dismiss me?

If you were given a previous final warning and you then commit a further act of misconduct your employer can rely on the previous warning to dismiss you, even if the act that you are being dismissed for is not serious enough to justify dismissal on its own.

What this means in reality is that you could commit the same act of misconduct twice, the first time being given a warning for it and the second time being dismissed. In these circumstances it could be that your dismissal would be fair.

It also means that, if you have a previous warning on record, you could be dismissed for something which you would not normally have been dismissed for.

The determining factor in deciding if your dismissal is fair in this situation is whether the previous warning you were given was given appropriately. If the Employment Tribunal decide that the previous warning was inappropriate they will likely decide that your dismissal was unfair.

If however the previous warning was fair and appropriate then it is likely that the Employer can rely on this in dismissing you for the second misconduct.

This question was recently discussed by the Employment Appeal Tribunal in the case of Simmonds v Milford Club.

In this case Mr Simmonds was a club steward who was dismissed because instead of giving staff a £15 bottle of wine for Christmas he gave them £15 cash.

On its own it would have clearly been unfair to dismiss Mr Simmonds for this, however he had been given a previous warning approximately 7 months before, and because of this second misconduct the Employer dismissed him.

The reason for Mr Simmonds previous warning was that he had taken the club’s takings to the bank, and when he could not park his wife took them into the bank whilst Mr Simmonds waited in the car outside. The Employer said that he had acted against their policies in allowing someone who was not employed by the club to handle the takings.

Following his dismissal for the second misconduct a question arose about the appropriateness of the warning he received for this first issue, as there had been no written policy or training about how takings were to be handled.

Mr Simmonds argued that it was unfair for the Employer to rely on the previous warning as this had been given to him inappropriately.

The Employment Appeal Tribunal decided that the Employment Tribunal should have asked the question whether the previous warning was ‘manifestly inappropriate’ and if it was the dismissal would be unfair.

Mr Simmonds’ case has now been returned to the Employment Tribunal who will hold a further Hearing to look again at the previous warning in the context of the fairness of his later dismissal.

What should I do if I receive a warning?

If you have been given a warning we strongly recommend that you appeal the warning.

If you are subsequently dismissed because of the previous warning then your dismissal may be unfair and you should get some advice.

Ultimately the fairness of your warning and dismissal will depend on the facts of your case.

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