A cautionary tale: any firm that thinks it can give final warnings to staff who have committed minor transgressions should think again, writes Sue Nickson. Disciplinary sanctions should be used with great care.
| Author | Nickson, Sue |
| Position | Legal |
The case of Stanley Cole (Wainfleet) Ltd v Sheridan serves as a warning to employers to avoid the under-considered or over-enthusiastic imposition of disciplinary sanctions. Sheridan had been employed by Stanley Cole for five years and had never been subjected to any disciplinary action in that time. In April 2000 she left the office without permission for around 90 minutes, distressed after an altercation with a colleague. As a result she was given a final written warning for unauthorised absence. Her appeal against the warning was rejected and a month later she resigned from her job. Sheridan claimed that she had been unfairly constructively dismissed by the imposition of the final written warning. The claim succeeded at an employment tribunal, but Stanley Cole then appealed.
The Employment Appeals Tribunal said that a final written warning should be given only in relation to conduct that "just stops short of that justifying dismissal", or where dismissal would be an option, but that sanction isn't applied because of some fact particular to the individual employee. Neither was the case here. As a result, it agreed with the tribunal that issuing Sheridan with a final written warning was a disproportionate response to conduct that it considered relatively minor. The EAT held that this disproportionate response amounted to a repudiatory breach of the implied term of trust and confidence, entitling Sheridan to claim constructive dismissal.
It's clear that employers should avoid imposing harsh penalties as a matter of course, or forcing someone to leave. If there is no real and objectively justifiable view that a recurrence could lead to dismissal, the warning itself may justify a constructive dismissal claim.
If an employer dismisses an employee, the tribunal will consider whether this decision was within the band of reasonable responses open to it in the circumstances. When it comes to deciding whether lesser disciplinary action amounts to a repudiatory breach of contract, however, the band of reasonable responses test does not apply. Instead, the tribunal will consider all the objective facts to...
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