The Employment Tribunal held that Ms Tayeh’s dismissal was unfair on the basis that the falsification of company records was clearly “in a different category of seriousness” from the other types of gross misconduct listed in BHL’s Employee Handbook. However, BHL found that the charges of falsifying the PEG feed documentation and failing to carry out observations on a resident following her fall, constituted gross misconduct, resulting in Ms Tayeh being summarily dismissed. Failing to complete the necessary transfer form once that resident had been transferred to hospital.Īll six allegations were found to have been proved and Ms Tayeh was issued with a final written warning in respect of the first three.Failing to carry out observations on a resident following a fall and.Falsifying company records (such as PEG feed documentation).Ms Tayeh was a registered nurse at Magnolia Court Care Home and her employment was subject to an Employee Handbook, which contained a list of the types of conduct that her employer (BHL) considered to be gross misconduct.Ī number of allegations were made about Ms Tayeh, who was responsible for the second floor in the Care Home, including: In Tayeh v Barchester Healthcare Ltd, the Court of Appeal considered whether an Employment Tribunal could substitute its own view of the seriousness of an employee’s misconduct. This case highlights the importance of considering the basis upon which a final written warning has been issued particularly where the Employer later relies upon it to dismiss an employee for a further act of misconduct.
manifestly inappropriate is a higher threshold than the test of that which is applied to the test of reasonableness of a dismissal”. The Employment Appeal Tribunal stated “It is only where on the facts there is a real concern that a sanction may have been manifestly inappropriate that it will be necessary for an Employment Tribunal to engage in a factual enquiry and detailed scrutiny of the circumstances in which that sanction was applied…. The Employment Appeal Tribunal allowed his appeal and the matter has been remitted to the Employment Tribunal to consider whether the issue of the final warning was manifestly inappropriate. Mr Simmons appealed to the Employment Appeal Tribunal. In reaching its decision the Employment Tribunal failed to consider whether the final written warning was consistent with the Club’s disciplinary procedure. The Employment Tribunal held that his dismissal was fair and the Company was entitled to dismiss Mr Simmons. The reason why Mr Simmons was issued with a final written warning was because he had asked his wife to deposit the Club’s takings while he waited outside in the car, having been unable to park near the bank. This was a harsh decision but the employee was dismissed because he was already under a final written warning. In this case, Mr Simmons was dismissed for giving staff a £15 Christmas bonus in cash instead of a bottle of wine of up to the value of £15 as instructed. The Employment Appeal Tribunal considered this in the case of Simmons v Northwood Club. Whether previous warnings can be taken into account when considering a claim for unfair dismissal. In this month’s E-News, we look at a case which considered whether previous warnings could be taken into account in a claim for unfair dismissal whether an Employment Tribunal could substitute its own view of the seriousness of an employee’s misconduct and whether a disclosure made after the employment has terminated could still be a protected disclosure under the whistleblowing provisions.