In Trye v UKME (UK Mission Enterprise Ltd) Ms Trye was dismissed without notice due to a failure to comply with UKME's sickness absence reporting procedures. She also had an active final written warning on her file as a result of disciplinary action in which various allegations had been upheld including continued lateness, failure to follow company procedures and policies and acting in a way which brought the company into disrepute. None of the allegations related to sickness absence reporting - albeit the previous misconduct included failures to follow company procedures.
In response to Ms Trye's claim of unfair dismissal, the Employment Tribunal held that the dismissal had not been unfair despite Ms Trye's most recent conduct not being enough in itself to justify dismissal. The Employment Tribunal held that as the final written warning was still active, the dismissal following a further act of misconduct was justified.
It was argued before the Employment Appeal Tribunal (the "EAT") that the Employment Tribunal had been wrong to simply consider whether or not the final written warning was still active when deciding whether or not the dismissal was fair. The EAT upheld the Tribunal's finding stating that in circumstances where a final written warning was active, a dismissal following a further act of misconduct could certainly fall within the band of reasonable responses of an employer and thus be justified. In fact the EAT stated that it will be in exceptional circumstances that a further act of misconduct will not justify dismissal where a final warning is still active.
The EAT also commented that even a final written warning which is not active, can still be a relevant factor when deciding whether or not a dismissal was fair. In this respect the EAT explained that such an expired warning is one factor which an employer can take into account when deciding what action to take in response to further misconduct and which the Tribunal can consider when determining if the employer's decision to dismiss fell within the bank of reasonable responses. Thus, if an employee commits further misconduct which could, in itself, justify dismissal, whether or not the employee has an expired final warning can be taken into account by the employer when deciding whether or not to dismiss.
To a large extent this decision reiterates principles which have been previously established. However, it provides further comfort to employers in making clear that dismissal for conduct which does not, in itself, justify dismissal, in circumstances where a final written warning is active (even if that final written warning is not for exactly the same type of misconduct) will usually be fair (subject always, of course, to a fair procedure being followed).