When considering unfair dismissal claims, the employment tribunal has to identify the reason for dismissal and then decide whether or not it is fair.
Reading the case studies below, you will find that is possible for your previous disciplinary record to be taken into account.
Case study 1: Good disciplinary record
Mr Spoor worked for Arnold Clark Automobiles Ltd for over 40 years. He had an exemplary disciplinary record – until one day when he lost his temper and allegedly ‘put his hands around’ the throat of an apprentice for a couple of seconds.
The apprentice reported Mr Spoor to a manager who issued him with an informal ‘letter of concern’. Mr Spoor apologised, shook hands with the apprentice, and they all went back to work.
However, HR initiated a formal investigation and disciplinary hearing, then summarily dismissed Mr Spoor for gross misconduct because the company had a ‘zero tolerance policy’ towards physical violence.
Mr Spoor made a claim for unfair dismissal, breach of contract and failure to pay notice pay, and the tribunal found he was 50% to blame. The appeal tribunal dismissed the company’s appeal that Mr Spoor was 100% to blame, because no ‘reasonable’ employer would have dismissed him:
- The company’s disciplinary procedure stated an employee would ‘normally’ be dismissed for physical violence – which indicated that they had the option to use discretion rather than zero tolerance
- HR didn’t check the seriousness of the incident with managers
- HR didn’t take Mr Spoor’s employment record into account
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Case study 2: Poor disciplinary record
Mr Stratford had received 17 warnings since he joined Auto Trail VR Ltd in 2001. He was given a nine-month warning in December 2012 because he failed to make contact when he was off sick, and a three-month warning in January 2014 because he used company machinery and time to prepare materials for personal purposes.
In November 2014, Mr Stratford was seen on the shop floor holding his mobile phone. This was described as ‘strictly prohibited’ in the employee handbook, so he was given a final written warning for misconduct, then dismissed.
Mr Stratford made a claim for unfair dismissal because the previous warnings had expired, and because misconduct (rather than gross misconduct) doesn’t justify dismissal.
The tribunal decided that it was fair to dismiss Mr Stratford, taking his disciplinary record and attitude to discipline into account.
The appeal tribunal dismissed Mr Stratford’s appeal based on his previous record, recent offence and the manager’s prediction that his behaviour wouldn’t change.
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