Beattie v Condorrat War Memorial and Social Club & Ors

An Employment Tribunal should not ordinarily reopen the merits of an earlier disciplinary warning when assessing a later dismissal. An earlier warning remains valid unless it was issued for an oblique motive or in bad faith, without prima facie grounds, or was manifestly inappropriate. Where an employee accepts at least partial responsibility for misconduct and cannot explain a material stock loss, an employer may have prima facie grounds for a final written warning even if its investigation was limited. The appellate tribunal will not substitute its view of disputed facts or interfere merely because it might have reached a different conclusion.

The claimant, a bar steward, was dismissed after refusing an instruction to sell tickets while a final written warning for missing stock remained live. The Employment Tribunal held that the dismissal procedure was unfair, but reduced compensation to nil on a Polkey assessment because a fair procedure would inevitably have resulted in dismissal.

The claimant appealed only against that reduction. She argued that the final written warning was invalid because the respondent had not investigated negligence, there was insufficient evidence of serious effect on its operation, and the warning was manifestly inappropriate. The central issue was whether the warning was valid when the later misconduct occurred.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the final written warning was live and valid. Its conclusion supported the 100 per cent Polkey reduction.

2. Applying Wincanton Group plc v Stone and Another UKEAT/0011/12/LA, the relevant question was not whether the appellate tribunal would have imposed the warning. The question was whether it had been imposed for an oblique motive, in bad faith, without prima facie grounds, or in circumstances making it manifestly inappropriate. Earlier employer decisions are generally established background and should only exceptionally be reopened.

3. There was no allegation of bad faith or oblique motive. The claimant accepted partial responsibility for the missing stock and could not explain the loss. Although there had been no focused investigation into her wrongdoing, there had been an investigation into the missing stock. The admission reduced the importance of further investigation and supplied a permissible basis for an inference of negligent loss.

4. The handbook term “negligence” was not to be read in its strict legal sense. It could encompass a failure to perform employment duties with care where the evidence permitted that inference. The Tribunal was entitled to regard the missing stock, central to the club's business, as a serious matter and to conclude that the warning was not manifestly inappropriate.

5. The Employment Appeal Tribunal could not allow the appeal merely because it might have evaluated the facts differently. The claimant had not met the high threshold for perversity. The final warning therefore remained available when assessing the consequences of the later misconduct, and the nil compensatory award stood.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal's conclusion that the final written warning was valid, and its resulting nil Polkey compensatory award, were upheld.
• Employment Tribunal: The claimant succeeded in her unfair dismissal claim because the dismissal procedure was unfair. It found that a fair procedure would have resulted in dismissal and reduced compensation to nil.