Tribunal Gives Guidance on ‘Totting-Up’ Dismissals

In circumstances where a prior written warning ‘tipped the balance’ in favour of an employee’s dismissal following a further incident of alleged misconduct, the Employment Appeal Tribunal (EAT) has given guidance on the correct approach to be taken in ‘totting-up’ dismissal cases (Wincanton Group plc v Stone).



Mr Stone, who had worked for Wincanton Group plc as a commercial driver for ten years, had been given a written warning after he objected to a change in policy that would have resulted in his redeployment to another site. Subsequently, he was disciplined in relation to a workplace accident that occurred when he pulled out of a loading bay in a shunter with a trailer attached when the traffic light was red. The rear of the trailer had not been closed properly and this resulted in an injury to a fellow worker. Wincanton Group considered that the second incident on its own warranted a final written warning but the earlier warning was treated as the decisive factor, tipping the balance in favour of Mr Stone’s dismissal.



In upholding Mr Stone’s unfair dismissal claim, the Employment Tribunal (ET) ruled that dismissal was not within the range of reasonable responses open to the employer because the conduct that had led to the earlier written warning was different in nature and was also the subject of an unresolved grievance at the time of dismissal. Mr Stone had argued that there had been no misconduct on his part and that the warning had been unjustifiably issued in response to his assertion of his statutory and contractual rights.



Upholding the employer’s appeal, the EAT ruled that, when considering the status of the written warning, the ET had wrongly substituted its own approach for that of a reasonable employer. The question for the ET is the reasonableness or otherwise of the employer’s act in treating the conduct as a reason for dismissal. The ET should not look behind an earlier warning unless it is satisfied that it was not given in good faith. Rather than focusing on whether the earlier warning had been justified, the ET should have concentrated on the issue of whether the employer was entitled to rely upon it as a reason for dismissal.



In considering that issue, the ET had been entitled to take into account the circumstances in which the warnings were given, including whether or not they were similar and the adequacy of internal disciplinary procedures that could affect the validity of a warning. Nor is it wrong for the ET to take into account the employer’s treatment of similar situations to see if this was consistent in approach. However, in other respects, the ET in this case had erred in law by taking into account irrelevant considerations and ‘effectively putting itself into the shoes of the employer and taking a decision that it had no right to take’.



The EAT ordered a reconsideration of the case by a fresh ET.