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Employers can use previous conduct – even where no warnings were given – when deciding to dismiss

Employers are often troubled by whether they can take into account expired warnings before dismissing for similar acts of misconduct.  The basic rule is that employers should take into account any live warnings on the employee’s personnel file, but can only take into account any expired warnings where the circumstances would have justified dismissal anyway.  But can an employer take into consideration previous conduct that has not resulted in any formal warning?

This was an issue that arose in the case of London Borough of Brent v Fuller.  Ms Fuller worked as an admin assistant in a special school which taught children with special educational needs.  The children were regularly disruptive and teaching staff were trained in restraint techniques.  During one incident Ms Fuller told staff restraining a pupil to “leave the boy alone”.  The Head immediately told her not to interfere with discipline.  No record was made of the incident, nor was it treated as a disciplinary incident.

Approximately 5 months later, Ms Fuller witnessed another incident which involved 5 members of staff trying to restrain a violent child.  She told the teachers (which included the Head) to “stop hurting the child”.  The Head told her to go and said that she would speak to her later.  However, Ms Fuller did not leave immediately and instead made a further comment that one of the restraining teachers was holding the child in a “sexual way”.  This incident caused the teachers to become distracted and the child became more aggressive.

Ms Fuller was suspended.  She went off sick and did not attend the disciplinary hearing during which she was dismissed for misconduct.  The disciplinary panel were told about the first incident and did take this into consideration before reaching a decision to dismiss her for gross misconduct for the second incident.  Her appeal was unsuccessful and Ms Fuller submitted an employment claim alleging that she had been unfairly dismissed.  She complained that her employers had made mistakes with the procedure they adopted and also that the decision to dismiss her was one that no reasonable employer would have made.

The ET agreed with Ms Fuller.  It said that no reasonable employer would have dismissed for a “one off” incident.  It believed that the disciplinary panel had been mislead into believing that the first incident was more serious than it actually was and was akin to a verbal warning.  The EAT disagreed.  It found that Ms Fuller had a clean disciplinary record because the first incident did not result in a warning or any kind.  However she had been told that she should not interfere with restraints and despite this clear instruction she did so again.  Her employers were entitled to consider this relevant background information.  The decision to dismiss was based on the seriousness of the second incident, which in itself was sufficient to constitute gross misconduct.

Tips for handling disciplinary hearings

  • Employers should examine an employee’s personnel file before deciding on an appropriate penalty.  This will include looking at expired warnings or any directions given to the employee even if these are not part of any disciplinary process.
  • Expired warnings must not be used to increase the disciplinary sanction imposed.
  • Account can be taken of an employee’s previous disciplinary record – including any expired warnings but only if there is enough evidence to justify dismissal anyway.  By doing so, an employer may be able to justify dismissing some but not all members of staff deemed to be guilty of the same incident.