Unfair Dismissal-April 2019

Is a final written warning valid in the absence of a full investigation into the incident? Yes, held the EAT, in Beattie v Condorrat War Memorial and Social Club & Others.

The employee was a bar steward. She received a final written warning for 12 months following a loss of 26 bottles of spirits. While the warning was still live, she then refused to sell tickets for a function in order to avoid any concerns if money went missing. She was subsequently dismissed and she brought an unfair dismissal claim.

The tribunal held that she had been unfairly dismissed due to procedural failings but reduced her compensatory award to nil on a Polkey assessment that there was a 100% chance that she would have been dismissed in any event. The employee challenged the earlier final written warning, partly because she had herself carried out the only investigation into the loss of stock, and the social club had not separately investigated her degree of fault. However, she had accepted ‘part responsibility’ and offered to repay the cost.

The EAT upheld the unfair dismissal. The initial investigation had not looked at the Claimant’s wrongdoing as such, but bearing in mind that the tribunal’s focus was the validity of the earlier warning rather than the actual dismissal, the tribunal had adopted the correct approach. The general rule was that earlier decisions should not be reopened. The tribunal had considered whether there was a prima facie case for issuing the warning. As it was fair to rely upon the earlier warning, the Polkey reduction was appropriate.

This case is a reminder for employers to ensure that;

  • allegations are investigated thoroughly, particularly where dismissal is a possibility.
  • a disciplinary hearing should generally always be held (there are exceptions).
  • it is also helpful to be reminded that an employee’s conduct will be taken into account and can reduce an award to zero.

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