When, in an unfair dismissal case, should an employment tribunal concern itself with the appropriateness of a final warning preceding the dismissal?
When there are grounds for thinking that the final warning may have been manifestly inappropriate, says the EAT in Simmonds v Milford Club.
Mr Simmonds was disciplined for giving staff a £15 Christmas bonus in cash instead of a bottle of wine up to the value of £15 as instructed. Because he was already under a final warning, he was dismissed.
The final warning was the result of an occasion when Mr Simmonds had asked his wife to deposit the club's takings while he waited outside in the car, having been unable to park near the bank.
The majority of the tribunal, finding the dismissal fair, had failed to consider whether a final written warning in these circumstances was consistent with the club's disciplinary procedure. Mr Simmonds' appeal was allowed, and the matter remitted to the tribunal to consider whether the final warning was manifestly inappropriate. The judgment notes at paragraph 20 that 'manifestly inappropriate' is a higher threshold than the test applied to the reasonableness of a dismissal.
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