It is a question I am often asked. How can an employer deal with an employee who is already on a warning for misconduct and who goes on to commit another (but different) act of misconduct. Can the employer tot up the warnings and dismiss, or does the fact the acts of misconduct are for different things prevent that?
The Employment Appeal Tribunal (“the EAT”) has recently given useful guidance on this issue. And it is good news for employers. The EAT has confirmed that previous warnings (provided they are still live) can be relied on, such that another act of misconduct can entitle the employer to dismiss. And what’s more, the EAT said that an employment tribunal should not re-investigate or open up the circumstances of the previous warning, unless it is clearly a sham. There are a few caveats to this though.
Firstly, says the EAT, employers should have regard to the degree of similarity or difference between the acts of misconduct when deciding what sanction to impose. This tends to suggest that an automatic totting-up of warnings, without such consideration, may still render a dismissal unfair. Secondly, employers need to ensure that they are acting consistently as between employees. And thirdly, if the previous warning is under appeal, then employers should consider whether a further penalty is appropriate in the circumstances, although that fact is no bar in itself to imposing a further penalty. But provided these criteria are met, totting up in this way will be allowed.
Separately, the Government has announced that it plans to reduce the consultation period required where employers are making large-scale redundancies (more than 100 employees) from 90 days to 45 days. The intended date for this is spring 2013.
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