In the case of Simmonds v Milford Club the ETA has held that when determining a case of unfair dismissal an Employment Tribunal should concern itself with the propriety of a final written warning where there are grounds for thinking that the warning may have been manifestly inappropriate.
Mr Simmonds was instructed to give staff a Christmas “bonus” of a bottle of wine each, up to the value of £15. Instead, Mr Simmonds gave staff a £15 cash bonus. He was already subject to a final written warning and consequently he was dismissed.
Mr Simmonds’ final written warning had been imposed when he had asked his wife to deposit the club’s takings at the bank instead of doing it himself because he had been unable to park near the bank.
The majority of the Employment Tribunal hearing Mr Simmonds case had found the dismissal to be fair. However, they had failed to consider whether the imposition of the final written warning to which Mr Simmonds was subject (and which therefore consequently contributed to his dismissal) had been imposed appropriately and was consistent with the club’s disciplinary procedure. Mr Simmonds’ appeal was therefore allowed. The matter was remitted to the Tribunal in order to consider whether the final written warning was manifestly inappropriate.
The judgment makes it clear that ‘manifestly inappropriate’ is a higher threshold to achieve than the threshold to test whether a dismissal was reasonable. It will therefore not be an easy hurdle to overcome, but may be of significant assistance to employees who feel they have been ‘set up’!