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Dismissal Prior to Appeal Fair?

Square One Law associate Roisin Patton considers the importance of ongoing appeals in dismissal cases.

In the recent Rooney v Dundee City Council UKEATS/0020/13/BI the Employment Appeal Tribunal considered the relevance of a live final written warning in a disciplinary that subsequently led to dismissal.

Mrs Rooney, a cashier supervisor, failed to follow instructions when taking a cash payment of £10,000 from a member of the public. Her actions resulted in a final written warning which was to remain on her record for 15 months. Mrs Rooney appealed the decision but, for various reasons, the appeal hearing never took place.

Within the 15 month window, Mrs Rooney failed to follow instructions again. This led to an altercation with her supervisor and as a result she was disciplined.

The disciplining officer was aware of Mrs Rooney’s final written warning and of the fact that she had appealed that decision. They were also aware that the appeal was yet to be determined. The allegations for this disciplinary would not normally have warranted the sanction of summary dismissal. However, the fact that there was a live final written warning coupled with a second incident of failing to follow instructions lead to the decision to dismiss Mrs Rooney.

The Employment Judge held that although he may not have taken the approach adopted by the Council himself, he must not substitute his own view for that of the Council. He found that the decision to dismiss was within the range of reasonable responses and that Mrs Rooney’s dismissal was not unfair.

Mrs Rooney appealed to the EAT, arguing that the Employment Tribunal misapplied the law in relation to the original final warning. It was held that there was no error in law; the guidance in relation to previous warnings had been considered by the Employment Judge. There was no indication that the warning was invalid and it was therefore not appropriate to hear evidence on this. The EAT held that the Employment Tribunal had reached a view that the decision to dismiss was one which a reasonable employer could have reached. The appeal was refused.

The decision is a useful reminder that when considering the fairness of a dismissal, the Employment Tribunal must not substitute its own view for that of the employer. In this case, the Employment Judge did not necessarily agree with the Council for deciding to proceed with the second disciplinary without addressing the outstanding appeal first. However, the Council was able to demonstrate that it had considered the outstanding appeal when considering if dismissal was appropriate. It had identified two serious incidents of failing to follow instructions, and that the final written warning was live and valid. It was considered reasonable for the Council to dismiss in these circumstances.

Employers should ensure that any disciplinary appeal is addressed, even if the appeal hearing takes place after considerable delay. Had Mrs Rooney been able to provide evidence to suggest that her appeal may have been upheld, the outcome of her employment claim may have been different.

For further information on the case or advice on a similar matter call Roisin on 0843 224 7936 or 07785628951. Alternatively please email

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