Labour & European Law Review Weekly Issue 507 15 February 2017
When considering whether a dismissal is unfair, tribunals have to have regard to the reason shown by the employer and to the circumstances of the particular case. In Perry’s Motor Sales Ltd v Edwards, the Employment Appeal Tribunal (EAT) held that they must not consider issues that the claimant did not mention in their claim form and which they were not asked to consider during the hearing.
In May 2014, Mr Edwards (a service manager at a franchised Vauxhall dealership) was given a first and final written warning after he was found guilty of tampering with company paperwork, including invoices. He did not appeal against the warning because he feared that he might lose his job.
A few months later he submitted a claim for work done on a car but falsely claimed it had been done within the requisite 45-day time period. He admitted to the offence but claimed it was due to pressure of work. As with the May incident, it was clear that he had no fraudulent intent and did not stand to gain individually from it.
At the disciplinary hearing, the dismissing officer decided that Mr Edwards was guilty of a breach of trust and confidence. And because the issue was so similar to the one for which he had previously been given a final written warning, he was dismissed on notice. Mr Edwards appealed but was unsuccessful.
The tribunal held that, although the employer had established a potentially fair reason for dismissal (conduct), the decision to impose a sanction as severe as a final written warning in May 2014 had fallen outside the band of reasonable responses as the basis for the decision was unclear.
It found that the decision to dismiss was unfair as it was partly based on the fact of the existing warning and also because the employer had not carried out a reasonable investigation. In addition, had the company provided Mr Edwards with support and training on its procedures, the situation would not have arisen.
The EAT allowed the appeal on the basis that the tribunal had taken the wrong approach to the earlier warning. Although Mr Edwards himself had not raised the validity of the earlier final written warning, the tribunal took it upon itself to look behind it, making findings as to what it really related to and whether therefore the penalty had fallen within the permissible range.
As such it had made an error of law on two grounds. First, because the tribunal was engaged in deciding a point that it had not been asked to consider; and second, because it then applied the wrong test, asking itself whether the warning fell within the range of reasonable responses rather than asking whether it had been issued for an oblique motive or was manifestly inappropriate.
By putting the issue of the warning at the heart of its considerations, the tribunal failed to consider the fairness of the dismissal against the existence of a valid final written warning. The appeal would be allowed but the matter remitted to a different tribunal for rehearing.
The EAT seems to be suggesting in this case that the correct test to apply to the issue of a prior written warning is whether the warning was “manifestly inappropriate” as opposed to the “range of reasonable responses” test applied by the tribunal.