EAT Unfair Dismissal: Reasonableness of Dismissal – The Employment Tribunal did not err in law in concluding that the final written warning issued to the Claimant by the Respondent was ‘manifestly inappropriate’: cross-appeal dismissed.
The Employment Tribunal, however, erred in its application of section 98(4) of the Employment Rights Act 1996: rather than asking whether it was reasonable to dismiss on the footing that the warning given had been an ordinary written warning, it should have focussed upon the actual reasoning of the Respondent and asked whether, applying the objective standard of the reasonable employer, it acted reasonably in dismissing the Claimant. This would depend on how it took account of the final written warning. Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA, Wincanton Group plc v Stone [2013] IRLR 178 EAT, Way v Spectrum Property Care Ltd [2015] IRLR 657 CA considered and applied. Appeal allowed.
David Richardson QC HHJ said that: i. A final warning may be found manifestly inappropriate ‘if there was something about its imposition that once pointed out shows that it plainly ought not to have been imposed’.
ii. The latter test was satisfied in the case of a warning for gross misconduct where the conduct ‘plainly did not amount to gross misconduct either on a reading of the Respondent’s own disciplinary procedure or by generally accepted standards’.
iii. A final warning will never be manifestly inappropriate if it was within the range of reasonable responses, although the two tests are not the same.
iv. If a final warning was manifestly inappropriate, and if the employer attached significant weight to it when deciding to dismiss (as opposed to treating it as mere background or as indicative of the standard to be expected while in reality dismissing for the post-warning misconduct), it would be difficult to see how the employer’s decision could have been reasonable.
David Richardson QC HHJ
[2016] UKEAT 0335 – 15 – 0906
Bailii
England and Wales
Cited by:
Cited – Fallahi v TWI Ltd (Unfair Dismissal) EAT 17-Aug-2021
‘Manifestly Inapproproiate’ is a general Test
The Appellant was employed as Senior Project Leader – Technology. The Respondent raised issues about his performance. On 26 January 2016 an informal performance management process commenced and objectives were set, with targets to be measured in . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2021; Ref: scu.570969
