Warnings and being on a slippery slope
26 February 2013
There have been a number of cases recently about employers relying on previous warnings. See the Court of Appeal’s judgment in Davies v Sandwell Metropolitan Borough Council. This follows on from President Langstaff’s decision in Wincanton Group Plc v Stone and Mrs Justice Slade’s decision in Simmonds v Milford Club.
The bottom line is that, in general, a previous warning can’t be challenged in an unfair dismissal claim. Only in the rare cases where a warning was manifestly inappropriate should a tribunal find it was unfair for an employer to rely on it.
Legally, this makes good sense. s98(4) of the Employment Rights Act 1996 puts the focus on the decision to dismiss. Case law, in particular Iceland Frozen Foods v Jones  IRLR 439, has focused us on assessing whether the employer’s decision was reasonable. Tribunals and courts are understandably reluctant to start embarking on a wide-ranging consideration of a claimant’s employment history or to reopen incidents that occurred months or years before dismissal.
But these decisions do create a problem for employees, because there is no real way of challenging an employer’s warning prior to dismissal either.1
So the risk is that employees end up pushed down a slippery slope by warnings (which aren’t manifestly inappropriate, but aren’t exactly fair either). By the time they reach the final disciplinary process, they’ve built up enough momentum that dismissal is close to inevitable. Then, when they reach the tribunal, there is no mechanism for considering the situation as a whole or challenging the unfairness that has built up before the final disciplinary process.
I doubt that either the EAT or Court of Appeal is likely to reverse course on this. So this will remain one of those areas where the protection from unfair dismissal is narrower than many might expect.
In some cases there might be some form of contractual claim or a discrimination claim – but I think these will be rare. And, since the tribunal only has jurisdiction over contract claims after employment has ceased, any contact claim would have to be heard in the civil courts. ↩