This case involved a Claimant that had been dismissed for gross misconduct taken together with an existing final written warning. The misconduct (on both occasions) was in relation to invoicing issues with the latter incident involving the Claimant making a false submission. The Employment Tribunal (ET) found that the Claimant's dismissal was unfair, but that the Claimant had contributed to his dismissal by 50 per cent and therefore ordered the compensation be reduced accordingly.

However, the Employment Appeal Tribunal (EAT) has found that the ET had erred in its finding of unfair dismissal because it:

  • determined an issue that the Claimant had not raised in his claim form, namely the validity of the earlier warning;
  • had applied the wrong test – it asked whether the warning was within the range of reasonable responses rather than whether the warning had been issued because of a hidden agenda, was manifestly inappropriate and/or was issued without grounds; and
  • substituted its own view for that of the reasonable employer.

The case has now been remitted to a different tribunal for rehearing.

Despite the ET's incorrect approach, this is a good reminder for employers to ensure that the reason(s) for any warning is clearly documented so there cannot be any concern that a warning is issued without clear grounds.

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