Previous incident for which no formal warning given can be taken into account when deciding whether to dismiss
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11.6.2010 In London Borough of Brent v Fuller, the EAT held that, when deciding whether to dismiss for gross misconduct, an employer was entitled to take into account a previous similar incident even though no formal warning had been given. Mrs Fuller worked as an administrator in a school for children with social and emotional difficulties. She intervened when teaching staff were restraining a difficult child and was told by the Head Teacher not to interfere in matters of discipline or behavioural restraint. No further formal discussion or disciplinary action about the incident took place. Later that year, a similar but more serious incident occurred. Mrs Fuller again intervened, resulting in her dismissal for gross misconduct. The employer cited "repeated and inappropriate intervention into behaviour management issues" and "failure to follow reasonable management instructions" and the school took into account that, because of what had been said to her at the earlier incident, Mrs Fuller knew that she was not to interfere on the occurrence of the later incident. An employment tribunal disagreed, holding that the earlier incident had been "built up to more than it was" and that the one-off incident later in the year did not merit dismissal. It held the dismissal was unfair. The EAT disagreed and overturned the tribunal's decision. It was held that the first incident was part of the relevant background to the later incident for which the employee was dismissed. It referred to the Court of Appeal's decision in Airbus v Webb, which is authority that all relevant circumstances to an incident should be taken into account when considering whether to dismiss the employee. The EAT held that the tribunal had incorrectly substituted its own view, rather than deciding what would have been within the band of reasonable responses for an employer to do. The EAT substituted a finding that the dismissal was not unfair.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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