Rooney v Dundee City Council

In assessing the fairness of a conduct dismissal, an employment tribunal must apply the objective test in section 98(4) of the Employment Rights Act 1996 and avoid substituting its own view for that of the employer. An earlier final written warning may be taken into account unless there is reason to regard it as invalid, such as an oblique motive or manifest inappropriateness.

An outstanding internal appeal against that warning is a material circumstance. It does not, however, invariably require the employer to defer dismissal or hold the appeal first. The tribunal must assess whether the employer reasonably considered that circumstance and whether dismissal fell within the range of reasonable responses.

The claimant, a long-serving cashier supervisor, was dismissed after a December 2011 incident in which she failed to follow instructions concerning cashing up. She was already subject to a final written warning imposed following a 2010 incident. Her appeal against that warning had never been heard.

The Employment Tribunal held that the dismissal was fair. It found that the employer had considered the unresolved appeal and that dismissal fell within the range of reasonable responses. The claimant appealed, contending that the Tribunal had failed properly to assess the employer's decision not to hold the outstanding appeal before dismissing her.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was fair.
2. The Tribunal correctly applied section 98(4) of the Employment Rights Act 1996. It had to decide objectively whether dismissal was reasonable in all the circumstances, while avoiding substitution of its own preferred course for that of the employer.
3. The earlier final written warning could properly be treated as valid. There was nothing to suggest that it had been imposed for an oblique motive, was manifestly inappropriate, or was otherwise invalid. The Tribunal was therefore not required to hear evidence reopening the merits of its imposition.
4. The unresolved appeal against the warning was a material circumstance. The Tribunal did not overlook it. It expressly recognised the concern that the appeal had not been heard and that an oral appeal hearing might have resolved matters. It nevertheless found that the employer had considered the outstanding appeal and had reasonably decided to proceed by reviewing the earlier disciplinary material.
5. The Tribunal considered both the decision to proceed without first hearing the appeal and the decision to dismiss. It was entitled to conclude that, although it might not itself have acted in that way and the outcome was harsh, both decisions fell within the range of reasonable responses. The prior warning and the later proven misconduct, involving failure to follow clear instructions, could reasonably justify dismissal.

• Employment Appeal Tribunal: Appeal dismissed: [2013] UKEAT 0020_13_1510.
• Employment Tribunal: Employment Judge McFatridge, sitting at Dundee, held that the claimant's dismissal was not unfair in a judgment copied to the parties on 29 January 2013.