Yes, holds the EAT in Rooney v Dundee City Council
The Claimant had a final written warning for failing to follow an instruction, which she appealed. The appeal hearing was rearranged a number times but never heard.
A separate disciplinary issue then arose, for inappropriate behaviour, whilst the final written warning was still 'live'.
The disciplinary officer upheld allegations which, in isolation, would only have justified a final written warning. However, the second incident bore similarities to the circumstances for which the first written warning was imposed. Therefore, taken together, the incidents justified dismissal.
The Claimant appealed. As part of the appeal the circumstances of the first written warning were reviewed. The decision was taken that the warning was justified and therefore there was no reason to ignore it. The dismissal was upheld.
The EAT was referred to the guidance given in Wincanton Group v Stone & Gregory. When considering the reasonableness of the dismissal where there is a valid warning the tribunal should take into account the fact of the warning including whether there had been an internal appeal. The decision taken by the employer is to be considered in light of section 98(4) but a final written warning implies that any misconduct will often and usually be met with dismissal.
The EAT upheld the tribunal's decision that the dismissal was fair. The tribunal had applied the appropriate test, namely whether dismissal was within the range of reasonable decisions an employer might take, the employment tribunal had been made aware that the warning was under appeal, and had considered the Wincanton guidelines.