Mr Stone was a lorry driver whose employment record was tainted by a written warning for misconduct (refusing to obey a reasonable management instruction relating to a policy change). He was in the process of challenging the basis on which that warning had been issued but, in the meantime, was dismissed after being involved in a serious driving accident. That second act of misconduct, by itself, might not have led to dismissal but the employer said that the balance was tipped by the first warning.
The tribunal found that his dismissal was unfair. The first warning was for different sort of conduct to the second incident and so should not have been taken into account. The tribunal was critical of the company for having issued the first warning at all; Mr Stone hadn't been guilty of misconduct, it held.
Wincanton appealed, arguing that the tribunal was wrong to have looked behind the first warning and to have substituted its view. The Employment Appeal Tribunal upheld the appeal and set out guidance for tribunals to follow in these types of cases.
The first step is to make sure that the earlier warning is valid. If it is then the tribunal:
- should take into account that fact that that warning has been issued;
- should take into account any proceedings that may affect the validity of that warning;
- must not go behind a warning by holding, for example, that it should not have been issued. It is acceptable to take into account the factual circumstances giving rise to the warning;
- may take into account the employer's consistency of treatment of employees.
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