Dismissal Fair Despite Failure to Follow Acas Code

The dismissal of an employee for a further act of misconduct following a final written warning was fair, even though the warning did not warn that further misconduct could result in dismissal.

In Buzolli v Food Partners, an employee was issued with a final written warning for failing to attend work because he was under the influence of alcohol.  Whilst the warning was still live he committed a further act of misconduct.  Following a disciplinary investigation and hearing, he was dismissed.  His appeal was unsuccessful and he claimed unfair dismissal.

The employment tribunal dismissed his claim as the employer had complied with the Acas Code.  The employee appealed, arguing that the Acas Code had not been complied with as:

• the final written warning letter did not state that further misconduct might result in dismissal; and
• the letter inviting him to the disciplinary hearing did not put him on notice that the hearing might result in dismissal.

The EAT rejected the appeal.  The dismissal was fair despite the procedural flaws.  The employer’s disciplinary policy made it clear that further breaches of conduct could result in dismissal and the employee should therefore have known the significance of the final written warning.  In any event, the employee was aware of the possibility of dismissal following the final written warning as he stated in his appeal letter that he thought he had been dismissed because of that warning.  Looking at the procedure in the round, it had been fair.

Although the employee’s dismissal was found to be fair, the case serves as a reminder of the need for a carefully drafted disciplinary policy which reflects the requirements of the Acas Code.  Employers may also find it useful to have template warning and dismissal letters in order to ensure compliance with Code.  If you would like help with either of these please contact your usual Doyle Clayton adviser or info@doyleclayton.co.uk.