Dismissal warnings

When deciding unfair dismissal claims, tribunals have to look at whether dismissal was within the band of reasonable responses open to a reasonable employer, among other things. In Wincanton Group plc v Stone and Gregory, the Employment Appeal Tribunal (EAT) reaffirmed that tribunals must always focus on what the employer did or did not do, as opposed to the actions of the employee.

Basic facts

Mr Stone was a lorry driver who was dismissed by his employer for disobeying a traffic signalling system at work and injuring a colleague in April 2010.
Mr Gregory was disqualified from his driving job in April 2010 for 18 months after being convicted of drink driving. His employer talked to him about doing other jobs whilst he served his disqualification but, although there were vacancies, he was dismissed and told to apply as an external candidate.

Both men had been disciplined a few months previously for refusing to obey a “reasonable management instruction” (to do some driving from a different depot). The employer rejected Mr Stone’s appeal, while Mr Gregory’s appeal had been “parked” to allow the employer to consider a collective grievance about the change of work base.

Both men claimed unfair dismissal for asserting the statutory right to bring a grievance.

Tribunal decision

The tribunal held that both men had been unfairly dismissed.

In the case of Mr Stone, it said that dismissal was not within the band of reasonable responses open to the employer as the issue of the change of depot was the subject of an unresolved grievance “which was being properly pursued” and was completely different to the subject of the second one. Wincanton should not therefore have “totted up” the first warning along with the second final written warning until the grievance had been resolved.

As for Mr Gregory, the tribunal said that his dismissal had been opportunistic. Not only had the company been trying to wear down his resistance to the change of depot policy, it had also ignored all the mitigating circumstances and had acted unreasonably in refusing to consider any alternatives to dismissal, despite having indicated that they would do so.

EAT decision

The EAT upheld Wincanton’s appeal in respect of Mr Stone on the basis that the tribunal had got the law wrong. It had substituted its own view for that of the employer and looked at things from the perspective of the employee, instead of focusing on whether it was reasonable for the employer to treat Mr Stone’s conduct as a reason for dismissal.

Having taken into account the fact that there had been an earlier warning, it should then have looked at whether the employer had given any weight to the fact that the employee was appealing against it. It should not have gone “behind” the warning to say that it should not have been issued at all.

However, it was not “going behind” the warning to take into account the factual circumstances that gave rise to the warning in the first place, adding that the more similar the circumstances, the more that “will tend in favour of a more severe penalty”.

However, it dismissed Wincanton’s appeal in respect of Mr Gregory, holding that the tribunal was entitled to find that the company had encouraged him to think that it would try to find him another job with them and that the assurances it gave were false. It was also entitled to find as a fact that Wincanton then told Mr Gregory that it was going to dismiss him, with the result that he could only apply for a job as an external candidate.

Given that the company had not appealed against the finding that it had a duty to take reasonable steps to help him find another job, the tribunal was entitled to conclude that Wincanton was not acting reasonably given the size and the administrative resources at its disposal.