Consideration of previous incidents in dismissal

Mark Minns, 31 July 2010

The Employment Appeal Tribunal (EAT) has held that, when deciding whether to dismiss an employee for gross misconduct, an employer is entitled to take all matters relating to the background of a dismissal into account including a previous incident for which an employee received no formal verbal or written warning.

Mrs Fuller was employed as an administrator in a Community Special School for children who suffer from social and emotional difficulties. She was one of three members of staff who did not have any contact with children. Pupils at the school were disruptive on a daily basis. During an incident in May 2007, Mrs Fuller intervened whilst staff members were trying to control a pupil who was shouting and screaming. Mrs Fuller asked the staff members to leave the child alone and ‘have mercy on him.’ Mrs Fuller was never formally disciplined about this matter but it was alleged that she was made aware that she should not intervene when a child was being restrained and was instructed not to do so in the future.

On 19th October 2007, Mrs Fuller again interfered when a child was being restrained and when she did, it was alleged that she made wholly inappropriate and unprofessional comments. Mrs Fuller was suspended and subsequently dismissed for gross misconduct. A letter was sent to Mrs Fuller on 5th March 2008 outlining the reasoning for dismissal and which made reference to the incident which had taken place in May 2007. An employment tribunal found Mrs Fuller’s dismissal to be unfair on the basis that more weight had been added to the May 2007 incident than was relevant and that the incident in October 2007 was not significant enough in itself to warrant dismissal.

The EAT overturned the tribunal’s decision holding that the school was not to be criticised for invoking the May 2007 incident as all matters relating to the background of a dismissal are relevant. Further, the EAT found that the tribunal had substituted its own view for that of the school as to the seriousness of Mrs Fuller’s conduct rather than assessing whether the school’s conduct in dismissing Mrs Fuller was beyond the band of reasonable responses.

London Borough of Brent v Fuller UKEAT/0453/09