It is an all too common scenario; an employee is involved in an incident that warrants disciplinary action. The employer deals with it leniently and no formal warning is given, the employee is then alleged to have committed an act of gross - misconduct and the employer wants to dismiss the employee. Can the employer rely on the previous misconduct of the employee even though no formal warning was given?

In the case of Brent v Fuller the Employment Appeal Tribunal ("EAT") held that all matters relating to the background of a dismissal were relevant. Even if an employee is not disciplined in relation to an earlier incident this can be taken into consideration in a subsequent dismissal.

In the above case the claimant worked in a school for children with social and emotional difficulties. Whilst the principal of the school and others were dealing with an incident involving a pupil the claimant, who was untrained and not used to witnessing such situations, intervened. The headmistress who was restraining a child at the time told her this was unacceptable and that she would be spoken to about the incident later. This never happened and no further action was taken.

A couple of months later the claimant witnessed another similar incident and again intervened, making inappropriate comments in front of the pupil who was being disciplined. The claimant was again told that this was unacceptable and she was summarily dismissed for gross misconduct.

The Employment Tribunal ("ET") held that she had been unfairly dismissed for a one off incident. This was overturned on appeal by the EAT which held that the earlier incident should be taken into consideration because as a result of this the claimant would have known that her behaviour in the second incident would be unacceptable. It also held that the decision to dismiss the claimant was reasonable given the way discipline had to be dealt with within the school. The ET had been wrong to substitute its own judgement about what it would have done.

Following this case it is likely that an earlier incident for which no formal warning was given could be able to be taken into consideration when dismissing an employee for a related incident.

Disclaimer: The information and opinions expressed in all Lee & Priestley LLP articles contained in our briefings and on our website - http://www.leepriestley.com are not necessarily comprehensive and should not be relied upon without taking in-depth professional advice.

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