If I’ve told you once, I’ve told you twice…a misconduct update

John Moore reports on two recent decisions which provide useful, practical points on dealing with misconduct dismissals.

Two strikes and you’re out?

It is widely understood that, for a dismissal to be fair, the employer must show

• that the dismissal was for a ‘potentially fair reason’, such as conduct or capability; and
• that it acted reasonably in treating that ‘potentially fair reason’ as a sufficient reason for dismissal.

Matters may become more complex in respect of dismissals for misconduct, where previous warnings are live when the employer is taking a decision to dismiss. 

An employer had to grapple with this issue in the case of Wincanton Group plc v Stone . The facts of the case were that the claimant lorry driver, Mr Stone, had received a first written warning from his employer, Wincanton, for refusing to agree a change in working practices.  Mr Stone unsuccessfully appealed against the warning.   During the currency of the first written warning, Mr Stone was dismissed following a serious accident caused by him pulling out of a loading bay, contrary to the traffic signalling system.  While such an offence might normally attract a final written warning, Wincanton decided to dismiss Mr Stone, regarding the earlier warning as ‘tipping the balance’ in favour of dismissal.

Mr Stone brought a successful claim for unfair dismissal, and Wincanton appealed.  The Employment Appeal Tribunal (EAT) allowed the appeal, and remitted the case back to a tribunal.  In doing so, the EAT provided some helpful guidance about how warnings should be weighed in the balance when tribunals (and, by extension, employers) are assessing the fairness of a decision to dismiss – particularly where the first and second misconduct is dissimilar in type.   In short, their comments were as follows.

• There is no need to look for similarity of conduct between first and second offences, where none is required. The Acas Code of Practice does not suggest that similarity is required between offences where the later misconduct is not, in itself, sufficient to justify dismissal. Further, the terms of the warning in this case made clear that any further incidents of misconduct (of whatever nature) could result in further disciplinary action. 
•  Just as a degree of similarity may, in some instances favour a more severe penalty (subsequently), so a degree of dissimilarity may tend the other way. There may be some particular feature related to the conduct of the individual that may contextualise the earlier warning. An employer should give proper value to all those matters.
• Assuming the earlier warning is valid, it may be taken into account but any proceedings that may affect the validity of that warning, such as an internal appeal, should be taken into account. This should be given as much weight as seems appropriate.
• It is correct for a tribunal to take into account an employer's treatment of similar matters relating to other employees.
• A final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.

Reasonableness of dismissals

It has long been established that, in order to be fair, a dismissal must fall within the ‘range of reasonable responses’ available to the employer.  The ‘range of reasonable responses’ test applies not only to the question of whether the sanction of dismissal was permissible, but also to the question of whether the employer's procedures leading to dismissal were adequate.

In addition, human rights may be engaged in the employment field, if the potential impact of a decision on the employee is sufficiently serious. Furthermore, under the Human Rights Act, the UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the European Convention on Human Rights (ECHR).  Article 8 of the ECHR states that "everyone has the right to respect for his private and family life, his home and his correspondence". 

The adequacy of an investigation and the ‘range of reasonable responses’ test was subject to an Article 8 human rights challenge in Turner v East Midlands Trains . This case concerned a senior train conductor, who was dismissed because her employer concluded that she had been fraudulently selling false tickets to the public and keeping the proceeds for herself.  The employer decided that she had been doing this by manipulating the ticketing system to create ‘non issued tickets’ (i.e. tickets that had to be returned because they are faulty or unwanted) and fraudulently selling those tickets on.  There was no direct evidence of this happening, but over a 36-week period, the conductor had 132 ‘non-issued tickets’ generated by her machine, whereas the next highest number of non-issued tickets for a senior conductor was twenty.

Ms Turner argued that the seriousness of the allegations meant that her human rights were engaged, and that the potential impact of the decision on her future adversely affected her rights under Article 8 of the ECHR.  Therefore, she argued, stricter procedural requirements should be put in place, beyond the usual ‘band of reasonable responses’ test.

The Court of Appeal agreed that Article 8 was engaged, but held that the ‘range of reasonable responses’ test is sufficiently robust to be compatible with employees’ rights under Article 8.  In reaching its decision, the Court of Appeal made the following practical points.

• A tribunal (and, by extension, an employer) should take into account both the nature and consequences of relevant allegations when determining whether a dismissal is within the range of reasonable responses.
• Therefore, if a misconduct dismissal will damage the employee’s ability to gain further employment, or involves an allegation of immoral or criminal conduct which might harm the employee’s reputation, then the employer should have regard to this when determining the nature and scope of the investigation.
• The Court of Appeal referred to other case law in the Employment field concerning the engagement of human rights and noted that more will be expected of a reasonable employer where allegations (and their consequences) are particularly serious.
• That said, the Court of Appeal was mindful of the fact that an investigation does not have to be on the scale of a full criminal trial; a tribunal should appreciate that investigations are conducted by lay people rather than lawyers.  Even in the most serious cases, requiring a careful and conscientious investigation, the standard required is not that of a criminal trial.

What does this mean for me?

This is a helpful and no nonsense decision by the Court of Appeal.  Even if Article 8 is engaged, it does not impose a heavier burden on employers than we are used to.   The ‘range of reasonable responses’ test lives to fight another day; and the points outlined above provide useful guidance on dealing with misconduct: the seriousness of allegations should be reflected in the scale of the investigation – but the investigation need not be exhaustive, even if it might be exhausting!