Wincanton Group plc v Stone

In deciding whether dismissal for misconduct falls within the range of reasonable responses, an employment tribunal must focus on the employer’s act under section 98(4) of the Employment Rights Act 1996. A previous warning is normally valid unless issued in bad faith, for an oblique motive, without prima facie grounds, or unless it was manifestly inappropriate. A tribunal must then take the warning into account, including any challenge to its validity. It must not substitute its own view of whether the warning was justified or place it wholly in abeyance. Similarity between the earlier and later misconduct affects weight, but is not a precondition to relying on the warning.

Two drivers appealed against findings by the Liverpool Employment Tribunal that they had been unfairly dismissed. Mr Stone had received a first written warning for refusing to work from another depot and was later dismissed after a serious red-light incident. The Tribunal considered that the warning should have been held in abeyance and that the misconduct was insufficiently similar.

Mr Gregory was disqualified from driving after a drink-driving conviction. The Tribunal found that the employer had failed genuinely to consider alternative employment despite assurances that it would do so. The central issues concerned the treatment of an earlier warning and the reasonableness of the employer’s response.

1. Stone. The appeal was allowed. Once the Tribunal accepted that the first warning was valid, it was not entitled to decide whether the warning was justified or whether it would itself have issued it. Its focus had to remain on whether the employer was entitled reasonably to rely on the warning. Treating Stone’s conduct as non-culpable and directing that the warning be held in abeyance amounted to going behind it.
2. Absence of similarity between earlier and later misconduct is not decisive. Dissimilarity may affect the weight of a warning, but does not prevent reliance upon it. A final warning ordinarily implies that further misconduct of whatever nature will usually lead to dismissal, subject to the circumstances.
3. The EAT summarised the principles in Stein v Associated Dairies, Tower Hamlets Health Authority v Anthony and Davies v Sandwell Metropolitan Borough Council. A warning should be disregarded only where it was issued in bad faith, for an oblique motive, without prima facie grounds, or was manifestly inappropriate. The Tribunal should consider any challenge, the factual context, similarity or dissimilarity, and comparable cases.
4. Gregory. The appeal was dismissed. The EAT proceeded on the parties’ agreed assumption that the employer owed a duty to seek suitable alternative employment, without endorsing that proposition generally. On the findings that Gregory had been falsely assured that alternative work was being considered and was told to apply only after dismissal as an external candidate, the Tribunal was entitled to find the employer’s conduct unreasonable.
5. Stone’s case was remitted to a separate fresh Tribunal for rehearing. Any challenge to the warning had to be identified in advance, and the burden lay on the person alleging bad faith.

• Employment Appeal Tribunal: allowed the appeal concerning Stone and remitted the case to a separate fresh Tribunal; dismissed the appeal concerning Gregory.
• Liverpool Employment Tribunal: by written reasons delivered on 8 August 2011, found both dismissals unfair.