10 January 2014: Dismissal following final written warnings:
What if you dismiss someone for misconduct before their appeal against their earlier final written warning is heard?
In Rooney v Dundee CC in the EAT Jan 2014, Ms Rooney was given a final written warning for not following an instruction, which she appealed. Before the appeal took place, an unconnected disciplinary arose for inappropriate behaviour.
The final written warning was still ‘live’ and although the second disciplinary would normally have resulted in a final written warning only, it was similar to the first disciplinary. The employer decided that taken together, the incidents justified dismissal.
Ms Rooney appealed her dismissal and the first written warning was reviewed by Dundee. They decided that the warning was justified and the dismissal was upheld.
The EAT held that Ms Rooney’s dismissal was fair; the Tribunal had considered whether dismissal was within the range of reasonable responses, and appropriate considered that the final written warning was under appeal. Tribunals should take into account whether there has been an internal appeal. However a final written warning normally means that dismissal follows further misconduct.
Of course it would have been better to get the appeal out of the way before embarking on further disciplinary action, however the Rooney case demonstrates that if that is not possible, that procedural defect is not fatal.
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