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Unfair Dismissal Claim won after Employer tolerated previous act of misconduct


Lawson-West Solicitors - Expert Author

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Where an employer tolerates an act of misconduct and then seeks to dismiss an employee for carrying out an act of misconduct which has been previously tolerated, then the dismissal may be unfair.

In McDonough v Bagnall UK Ltd, an employee won an employment tribunal claim for unfair dismissal after smoking in his company car, an act the employer was found to have previously tolerated.  The employee had over 15 years’ service and had previously been caught smoking in his company car, but not disciplined.  In June 2009, he was caught smoking in his company car, but this time the employer started disciplinary action.  The employee denied the act of misconduct but was sacked for gross misconduct.  The employee appealed and alleged that the employer knew several employees smoking in their company cars but were not disciplined so he had been victimised as the employer had failed to investigate similar allegations against other employees.  The employer dismissed the appeal. 

The employee brought an employment tribunal claim for unfair dismissal, citing Sarkar v West London Mental Health NHS Trust.  After investigating a number of complaints, the employer decided Dr Sarkar ought to face disciplinary proceedings.  However, some of complaints were inter-linked with complaints made by Dr Sarkar about other employees, so the trust decided to use a mediation process first.  This process could only lead to a first written warning in the worst case scenario.  However, mediation broke down and the trust dismissed Dr Sarkar under their disciplinary procedure.  He claimed unfair dismissal.  The employment tribunal found that the dismissal was unfair because the employee could reasonably believe that the complaints were not serious enough to warrant dismissal otherwise the employer would not have used the mediation process which could not result in dismissal.  The employer could not rely on apparently minor issues of misconduct to suddenly become serious enough to justify dismissal.  Although the employment tribunal did find the employee had contributed towards his dismissal so reduced the compensation due.

In McDonough v Bagnall UK Ltd, the employment tribunal found that because the employer had failed to discipline Mr McDonough for smoking in his company car previously, then it was reasonable for the employee to assume that this act of misconduct would not be taken seriously so the dismissal was unfair.  However, the employee’s compensation was reduced by 50% because he had contributed to his dismissal.

If an employer turns a blind eye to an act of misconduct by one employee, but dismisses another for the same act of misconduct, then the dismissed employee may have a claim for unfair dismissal.  Similarly if an employee is disciplined and then dismissed for an act of misconduct without being warned that the disciplinary procedure would lead to dismissal, the employee may have a claim for unfair dismissal.

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Lawson-West specialise in commercial, business and employment law. Our team of dedicated commercial solicitors can help with buying or selling a business, business law and disputes, landlord and tenant issues and commercial property. Our expert employment team can offer practical advice and guidance on all aspects of employment law including redundancy, compromise agreements and dismissal procedures. Visit for more information.

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Article Published/Sorted/Amended on Scopulus 2010-09-11 14:04:51 in Legal Articles

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