The law is not an exact science, and employment law among the least of all.  The test supposed to be used by the Employment Tribunals to determine the fairness of a dismissal is whether it falls “within the range of reasonable responses”, so potentially allowing for a whole variety of right answers to the basic question of whether it was appropriate to dismiss in the circumstances.  In conducting that test, the Employment Judge is expressly forbidden to determine what he/she would have done if in the employer’s shoes at the time.  It is the responses of the employer which must be reasonable, not those of the Judge.

The recent case of Rooney -v- Dundee City Council put both these conditions to the test.  In August 2010, Susan Rooney breached (with the best of intentions) some instructions given to her about cash handling.  She was given a final written warning lasting until the end of 2011.  Though she appealed, that appeal was neither heard nor withdrawn.  The strong impression from the Employment Appeal Tribunal’s judgment is that both sides simply forgot about it.  In December 2011, still within the currency of that warning, Rooney again breached cash handling procedures and was dismissed. 

Dundee admitted that had it not been for that earlier warning, Rooney would not have been dismissed for the December 2011 incident.  So the obvious question becomes whether it was fair (i.e. within the range of reasonable responses) to let the balance be tipped by a past warning which the dismissing officer knew to be the subject of an unresolved appeal.   The Employment Tribunal concluded that it was.  It decided that where the employer knew a previous warning to be subject to challenge, it had to take that into account but that neither it nor the Employment Tribunal was obliged to discount the warning entirely as a result unless it was “manifestly inappropriate”, or not issued in good faith or without prima facia grounds for doing so.  Here the breach of procedure in August 2010 was substantially admitted as a fact, the appeal revolving mostly around Rooney’s motives, so it could not be said that the warning fell in that category even though Dundee accepted in evidence that the appeal, had it been heard when brought, could have gone either way. 

Dundee appears as a result to have had a lucky escape – the Employment Judge made it clear that she would have heard the outstanding appeal from the first incident before making any decision on the second.  However, she concluded on balance that although the dismissal was in the circumstances unquestionably harsh, it was not so unreasonably so as to take it outside that permissible range of responses.   The second breach was (or at least could have been) very serious; Rooney had taken no steps to chase the appeal since February 2011; there was clearly some merit to the first warning, even if only as a question of degree or a pointer to Rooney about the importance of procedures; and (above all) Dundee had expressly considered both the warning and the challenge to it before reaching the decision to dismiss.

Therefore dismissal in reliance on a warning which is known to be under challenge at the time will not necessarily be unfair.  However, the employer will need to be clear as to the extent of that reliance, having express regard in particular to the impact of the employee’s outstanding appeal.  That creates some obvious reasoning which the Employment Judge is then prevented from second-guessing.  Given the reservations of the Judge here, it may generally be wise to deal with that challenge first, but this will depend on the circumstances – if the second incident is one which may justify dismissal in its own right anyway, this will be much less necessary.