A dismissal is normally fair if an employer can show that it relates to an employee’s conduct. In Trye v UKME (UK Mission Enterprise Ltd), the Employment Appeal Tribunal (EAT) held that tribunals can take into account a final written warning that is still current when deciding whether a misconduct dismissal was within the band of reasonable responses open to an employer.

Basic facts

Ms Trye worked as a housekeeper for UKME which managed about 200 properties on behalf of a prominent Middle Eastern family. In 2011 there was an issue with a lost key which resulted in the housekeeping supervisor writing a “letter of concern” to Ms Trye.

In 2012 another housekeeper raised a grievance against her. However, before the disciplinary hearing took place Ms Trye refused an instruction from her manager not to present herself at a particular property. This breach was added to the list of disciplinary offences considered at the hearing which took place in November 2012 when she was given a final written warning.

Following a period of unauthorised absence in September 2013 when the final written warning was still current, Ms Trye was invited to another disciplinary hearing to consider her failure to provide a medical certificate and to follow the absence procedure. This resulted in her dismissal for gross misconduct. Ms Trye complained of unfair dismissal.

Tribunal decision

The tribunal held that it was hardly surprising that the company decided to dismiss her given that Ms Trye was subject to a final written warning when she committed the conduct concerned. Her defence as to why she had not made contact was weak “being that she had made one unsuccessful attempt at speaking to someone and had then fallen asleep”. In addition, she had given inconsistent accounts of the incident in the course of the disciplinary process and ultimately maintained that she had done nothing wrong.

The tribunal was satisfied that the company had a genuine belief, based on reasonable grounds, that Ms Trye had committed the relevant conduct. Although the failure to provide a medical certificate was not serious in itself, dismissal was within the range of reasonable responses open to the company.

Ms Trye appealed, arguing that her conduct was not serious enough to warrant dismissal because if there had been no final warning, dismissal would not have been within the range of reasonable responses open to the company.

EAT decision

The EAT rejected her argument, holding that the question for tribunals is not whether the employee was guilty of gross misconduct, but whether the decision to dismiss fell within the band of reasonable responses open to the employer. It was therefore relevant to take into account if there was a final written warning which was still current; and indeed, the EAT made clear that it will only be in “exceptional circumstances that further misconduct will not be met with dismissal”.

Ms Trye’s argument therefore went “nowhere” as this was a case in which there had been conduct leading to the decision to dismiss and there was a final warning that was still in force.

Noting the decision of the Court of Appeal in Airbus UK Ltd v Webb that tribunals can take into account a final warning that is no longer current under the terms of the contract, the EAT concluded that, if a final warning is still current under the terms of the contract when the conduct to which the dismissal occurs, dismissal is within the range of reasonable responses.