When considering whether a dismissal is fair, tribunals can take into account whether it was perverse for the employer to have issued a final written warning. In Adegobola v Marks and Spencer plc, the Court of Appeal held that although it was not for the tribunal to sit in judgment on the substantive matters on which the written warning was based, it did need to be satisfied that it had been issued in good faith.
In July 2010, Ms Adegobola, a customer assistant at the M&S store in Wimbledon, was disciplined for an incident involving another member of staff for which she received a final written warning. Three months later, she was involved in an argument with a manager. A few days after that, M&S was notified that someone (who turned out to be Ms Adegobola’s sister in law) was claiming VAT on goods she had purchased with Ms Adegobola’s store card.
The investigating officer, who was asked to look at both matters, concluded that there was a case to answer in relation to the argument with the manager, but not in relation to the store card. This was despite the fact that Ms Adegobola admitted that she had resold goods purchased with the card, contrary to the terms of issue, and signed notes of the interview to that effect. At the disciplinary hearing in November, however, she denied that she had bought goods to resell but could not explain why she had signed the notes of the interview saying that she had. She was dismissed at that hearing and her appeal against dismissal a month later was rejected.
Ms Adegobola brought a claim for unfair dismissal on the basis that the same managers had been involved in the first disciplinary hearing that led to the final written warning and the second hearing that led to her dismissal.
Tribunal and EAT decisions
Although it would have been better practice for different people to be involved in the two disciplinary hearings, the tribunal was satisfied that Ms Adegobola would have been dismissed anyway. This was partly because she had admitted to misusing her staff discount card and partly because of the existing final written warning (which it could not look into as it did not have jurisdiction to do so). The EAT rejected her appeal.
Court of Appeal decision
The Court of Appeal held that although it was not for the tribunal to sit in judgment on the substantive matters on which the written warning was based, it did need to be satisfied that it had been issued in good faith; that there were at least prima facie grounds for imposing it; and that it must not have been manifestly inappropriate to issue it.
In this case, the tribunal had found that Ms Adegobola could have been dismissed for gross misconduct for the discount card incident alone, never mind the second offence or the first written warning. It could not have arrived at that conclusion if it had not considered the question of good faith and the allegations made by Ms Adegobola and rejected them.
The Court therefore rejected the appeal.
Legally, if the new offence could justify dismissal by itself there is no legal point to attacking an earlier warning. Industrially there might be. This decision though does not declare open season on an earlier warning. Tribunals will not reconsider it except in very narrow circumstances, namely that that it had not been issued in good faith; that there were not at least prima facie grounds for imposing it; or that it was manifestly inappropriate to issue it. This is basically a perversity test, and very few cases indeed will meet it.