United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL NORTHALL (of Counsel) Instructed by: Messrs Hill Dickinson Solicitors 1 St Pauls Sq Old Hall Street Liverpool Merseyside L3 9SJ
For the First Respondent For the Second Respondent	MR JOHN HEALEY (Representative) No appearance or representation by or on behalf of the second respondent


 


SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

Mr Stone first had a written warning for misconduct in November 2009. Within the currency of the warning, he committed a disciplinary offence of a different kind, for which on its own a final warning might well have been sufficient. ET held a dismissal unfair because it thought the first warning was not in respect of similar conduct and should have been held in abeyance since there were ongoing proceedings about it, because it thought the employee was justified in his conduct on the earlier occasion, and his misconduct then was not culpable. Held that it did not follow guidance in earlier cases. It had substituted its own approach for that of the employer. There was force in criticism of the ET's approach to material facts, which it was unnecessary finally to resolve given the errors of law.

Mr Gregory was a driver, who was disqualified for drink driving. ET held that the employer had not acted reasonably in assuring him it would seek out alternative employment, when it did not do so, and in then telling him he would be dismissed but could thereafter apply to fill any vacancies (of which there were a number) on the same footing as any external applicant. It was not in issue on the appeal that the employer had a duty to take reasonable steps to help the employee to secure alternative employment in its undertaking (though the EAT regarded it as highly arguable that this was not the law). Given that, and findings of fact which the ET was entitled to make, the appeal would be dismissed.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

Introduction

1. This appeal raises a number of points as to how an employer should deal with an employee who has an allegation of misconduct held against him in the light that he has earlier received a written warning. It concerns two former drivers who complained they had been unfairly dismissed by the Appellant. Their cases were separate and deserve separate consideration but involve some common issues. The Liverpool Employment Tribunal, in reasons that were delivered in writing on 8 August 2011, held that the two had each been unfairly dismissed. We shall deal with the facts of each, to some extent separately.

The facts - Stone

2. Mr Stone had had ten years' service before he was dismissed for an incident that occurred on 13 April 2010. He was driving a shunter with a trailer attached, when he pulled out of a loading bay contrary to the traffic signalling system. He should not have done so except if there were a green light; it was red. The incident has these particular features: at the time that he pulled out, the rear of the trailer had not been closed; a colleague was in it, and the effect of the actions of Mr Stone was to cause injury to that colleague. There was no evidence before the Tribunal that those particular features applied to any other case.
3. Mr Stone was also subject to a first written warning for earlier alleged misconduct. The employer held that it was that which made the difference between being given a final written warning, which each of two dismissing managers who sequentially looked at the case would otherwise have given, and dismissal. It was the first written warning that tipped the balance.

The facts - Gregory

4. Mr Gregory had just under three years' service. On 26 April 2010 he was disqualified from driving for 18 months following a conviction from driving with excess alcohol; it appears he had had more that twice the legal limit. Being unable, therefore, to pursue his job as a driver, driving duties constituting 95 per cent of his time, the employer called him to three meetings, at which there were discussions about whether he might be recruited for office or warehouse posts whilst he served his disqualification. The upshot of those was that although there were vacancies, the employer simply told Mr Gregory that he would have to be dismissed and apply for those vacancies in the usual way.
5. The Tribunal found that there had been no genuine or reasonable effort to find or consider suitable alternative employment or alternatives to dismissal. This was despite the fact, as the Tribunal also found, that Mr Gregory had been reassured that alternative work was being looked into when that was not the case.

Common factor

6. A common factor in the Tribunal's analysis of each case and in its findings of underlying fact was that the employer desired to change its working practices so that there would be greater flexibility in the use of wagons and employees. Its policy was to ensure that they were freely transferable between sites, ensuring the most flexible and economic response to customers' needs. This later became known to the employees as the "One Fleet policy", though we understand that that label was not applied to it, so far as the workforce was concerned, before May 2011. Both men habitually worked from Lea Green in the north-west of England. The change of policy meant that they would have also to work from Heywood. Mr Stone did not want that to happen at all; Mr Gregory did not mind, but it did not at the time suit his personal and family circumstances.
7. When attending Heywood for training, Mr Stone was asked to do some driving from that depot; he refused. Mr Gregory also indicated a refusal. Both were disciplined for disobedience to what was described as a reasonable management instruction. Mr Stone and Mr Gregory both asserted that they were entitled under their contracts to refuse. However, they were issued with a first written warning, and both appealed. In the case of Mr Stone, his appeal was rejected; in the case of Mr Gregory, his appeal was parked whilst a collective grievance that both men and others had raised in respect of any policy insisting upon a flexible change of work base was resolved, but after a short while Mr Gregory withdrew his grievance and accordingly his appeal lapsed at the time.

The decision of the Tribunal

8. The Tribunal was asked by Mr Stone to consider that the real reason for his dismissal was his assertion of a statutory right. Mr Gregory, in his ET1, asserted the same. The Tribunal rejected that, and there is no further appeal at this stage from that finding. However, the Tribunal determined, in the case of Mr Stone, that he had been unfairly dismissed because of reasons centrally expressed in its paragraph 4.1.5:

"Dismissal was not within the band of reasonable responses to Mr Stones' conduct. The tribunal does not criticise the giving of the first warning and does not seek to re-open that issue or question the respondent's right to issue a warning. However the circumstances of Mr Stones' behaviour in challenging the One Fleet secondment to Heywood, were the subject of an unresolved grievance and litigation which was being properly pursued."

We interpose to say that last reference was a reference to the fact that there are ongoing Tribunal proceedings, now at the stage of appeal to this Tribunal, in relation to the correct interpretation of the contract. Returning to the reasoning:

"The respondent acted unreasonably in totting up the related warning with a proper final written warning for the red-light in the bay incident (which was given and accepted as the customary response of the respondent to all such incidents in the past for a first such offence by a long-standing employee). The tribunal is however critical of the account taken by the respondent of the earlier warning in the circumstances and not of the warning itself. Mr Stone may be proved wrong about his interpretation of the labour agreement and his opposition to the One Fleet policy; albeit he conducted himself reasonably nevertheless it may eventually be shown that he disobeyed a lawful instruction. All we are saying at this stage is that his conduct and demeanour was not culpable misconduct in the circumstances known and reasonably believed by him at that time, namely that there was a difference of opinion as to the terms of the contract yet to be resolved. The warning should have been held in abeyance and should be revisited as and when the contractual issue is resolved; if the respondent is right one might expect it to repeat its instruction to an employee holding out against One Fleet to reconsider redeployment and take appropriate action if he/she remains obstructive; on the other hand if a conscientiously objecting employee is proved right about the Labour Agreement one might reasonably expect any earlier warning for objecting to redeployment to be reviewed with the possibility of it being rescinded, if the objection was (as in Mr Stone's case) properly pursued. We only speculate about those future possibilities but find that it was not reasonable to tot up the first and the final warnings given the circumstances of the first warning."

9. In the next paragraph the Tribunal went on to find that the totting-up dismissal was effectively a punishment for disagreeing with the One Fleet policy in good faith on the grounds of his belief in his contractual position and for having pursued that belief reasonably and properly via the grievance procedures and litigation. The Tribunal noted (see paragraph 4.1.1) that the employer purported to dismiss Mr Stone for what was described as "repeated misconduct". It said that no reasonable employer could have thought that there was repeated misconduct; there was (see paragraph 4.1.2) no similarity between the conduct that was the subject of the first warning and the human error that led to the final written warning.
10. So far as Mr Gregory was concerned, the Tribunal regarded the actions of the employer as having sought to wear down his resistance to the One Fleet policy and the dismissal as having been opportunistic in circumstances when a reasonable employer acting in good faith would not have taken that course. It had alternative employment into which it could redeploy Mr Gregory but had ignored all the mitigating circumstances and had acted unreasonably in refusing to consider any alternatives to dismissal, having indicated that it would do so. It added (paragraph 4.2.4):

"It even stated that it would consider any job application he wished to make provided he waited until after his dismissal and submitted it as an external candidate."

11. The Tribunal commented that that was cynical and that therefore the Respondent had not acted reasonably.

The Submissions

12. Mr Northall of counsel argues that there are essentially three main flaws in the decision. Expanding upon the way in which three grounds are expressed in the Notice of Appeal, he argued first, that the Tribunal was in error in looking for similarity between the substance of the conduct in respect of the first warning and that in respect of the second incident leading to dismissal. Secondly, he argued that in the actual factual enquiry into the circumstances the Tribunal made findings of fact that it was not entitled to make and had misapplied the test in the authorities and in particular in a test derived from Stein v Associated Dairies [1982] IRLR 447, as expressed by this Tribunal, presided over by Wilkie J, in the case of Davies v Sandwell Metropolitan Borough Council UKEAT/0416/10, 13 January 2011, at paragraph 29. That test was to the effect that a Tribunal has no right to look behind a warning provided that it had been issued in good faith and there were prima facie grounds for it, or, to put it another way, not issued for an oblique motive and not manifestly inappropriately issued. Thirdly, he argued that the Tribunal had substituted its own view for the employer in paragraph 4.1.5; it had based its assessment not upon what the employer's actions were and how reasonable they were in matters viewed from the employer's perspective at the time but based upon its perception of what the employee believed at the time, and, in a graphic phrase, Mr Northall said, in that respect had flipped the usual test upon its head. That, he submitted, was an error that ran throughout the decision as a constant thread from the findings of fact into paragraph 4.1.5.
13. In greater detail, he submitted that whereas an employer was entitled to pay regard to the degree of difference or similarity between the matters that gave rise to a warning and a subsequent matter of misconduct, any lack of similarity did not have the effect that the earlier warning could be ignored; a lack of similarity was not determinative. In saying what they did at paragraph 4.1.2, the Tribunal had regarded the lack of similarity as determinative:

"There was no similarity between the conduct that was the subject of the first warning (disputing the contractual terms) and the human error that led to the final written warning. It was not reasonable, and no reasonable employer would, to conflate these acts treating them as together justifying dismissal. […]"

14. Similarity is not a necessary condition of reliance upon a previous warning, he submitted. In support of that, he drew our attention to the 2009 ACAS Code of Practice in respect of disciplinary and grievance procedures. Paragraph 18 provides that where misconduct is confirmed, or an employee is found to be performing unsatisfactorily, it is usual to give the employee a written warning. A further act or misconduct or failure to improve performance within a set period would normally result in a final written warning. At paragraph 20 of the Code:

"A first or final written warning should set out the nature of the misconduct or poor performance and the change of behaviour or improvement in performance required (with timescale). […] The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. […]"

15. Neither of those paragraphs makes it essential that the latter misconduct is of the same nature as the former. If it had been intended to limit it, that is what ACAS would have said. There is guidance from 2011 as to the provisions of a disciplinary code. That is to the same effect. Under paragraph 4.37 it is said:

"If the employee has received a final written warning, further misconduct or unsatisfactory performance may warrant dismissal. Alternatively, the contract may allow for a different disciplinary penalty instead […]."

16. There is no suggestion within the guidance that misconduct not in itself sufficient to justify a dismissal on its own would have to be found to be of a similar nature to prior misconduct in respect of which there was an extant warning for a dismissal for that misconduct to be justified.
17. He finally pointed to the terms of the written warning itself in this case, dated 12 November 2009, in which the author said to Mr Stone:

"Should there be any further incidents of a similar nature during this period, or indeed any actions of misconduct [italics added], then further action may be taken at that time."

18. As to the second head of his submissions, Mr Northall argued that the Tribunal began at paragraph 4.1.5 by saying it did not criticise the giving of the first warning. That, he submitted, was inconsistent with that which was said in paragraph 2.2.7. There the Tribunal had said that the Respondent was forcing the pace with the introduction of the One Fleet policy, hoping to persuade Mr Stone to work and therefore acquiesce in its agenda, "thus effecting an amendment to the claimant's contract and applicable policies and procedures". In other words, there was within the terms of the formulation in Stein, adopted in Davies, an oblique motive for the warning given by the employer. Nonetheless, the Tribunal began (paragraph 4.1.5) by regarding the warning as valid. He complained that when the Tribunal in the course of paragraph 4.1.5 made reference to the conduct and demeanour of Mr Stone at the relevant time as not being "culpable misconduct", it was again saying something inconsistent with the issue of the warning. There could be no valid warning if properly and reasonably viewed by any reasonable employer there was no culpable misconduct. Accordingly, he submitted, the Tribunal were paying lip service only to the principle that it could not go behind a warning.
19. Next, he submitted that the Tribunal had mis-stated the facts in favour of the employees on more than one occasion. It had in respect of Mr Stone recorded in paragraph 4.1.5 that a final written warning had been given and accepted as the customary response of the Respondent to all such incidents in the past for a first such offence by a longstanding employee. Elsewhere, it described the "settled practice" of the employer. In fact, the only evidence before the Tribunal as to any practice at the time of the dismissal of Mr Stone was that of one driver who had ignored a red light in similar circumstances to Mr Stone in respect of whom a final written warning had been given. That is accepted by Mr Healey, for Mr Stone; we therefore take it to be accurate. One example prior to the case of Mr Stone cannot, in our view, create a practice that can then be relied upon, and such was Mr Northall's submission.
20. Finally, he objected to the way in which the Tribunal had regarded the underlying motivation of the employer as being the implementation by hook or by crook of the One Fleet policy. In respect of this the Tribunal had, he maintained, overstated the evidence when at paragraph 2.1.8 it described the Claimants as having issued a collective grievance against what they perceived to be the misapplication of the labour agreement made between the union and the employer, "particularly with regards to the One Fleet policy". At paragraph 2.1.11 the Tribunal observed that:

"It was understood generally that the One Fleet policy would entail employees having to work their contracted hours and even overtime or additional hours […]."

21. It recorded that, "Mr Stone objected to the One Fleet policy and its agenda" (paragraph 2.2.3), that (paragraph 2.2.4) "Mr Stone suspected that the Respondent was introducing the policy on its own agenda by sleight of hand or by stealth", and, at paragraph 4.1.5, that there had been a One Fleet secondment to Heywood. He argued that in fact the witness statements of both employees revealed that neither had understood that there was any policy, whether described as One Fleet or otherwise, before May 2011. Thus at paragraph 28 of his witness statement Mr Gregory had said:

"We found out in tribunal in May 2011 [a reference to the Tribunal hearing on the contractual dispute and not the Tribunal hearing in this case] that the management were trying to get a fleet of drivers who could be made to work anywhere in the North West […]. I can see now that our collective grievance was holding that plan up and it makes sense that we were picked on like that."

22. Paragraph 44 of Mr Stone's witness statement was to like effect:

"I didn't realise it at the time but there was a 'project' going on in Wincanton called 'One Fleet' which was about the senior management trying to create a workforce that could be made to work at any North West site at any time. I only found out about this in the Determination of Contract hearing on 19^th May 2011."

23. He argues that, given those unequivocal statements, neither employee could have had in mind a policy, whether described as One Fleet or otherwise, at the time and in the manner ascribed to them later by the Tribunal. This, he submits, is evidence of the Tribunal taking an erroneous view of the employer's motivation for what took place, and he argues this material misapprehension of fact demonstrates an approach to the facts of the case that showed the Tribunal was in error.
24. So far as Mr Gregory was concerned, Mr Northall argued that the Employment Tribunal had made its findings in his respect in a climate infected by its erroneous approach to the One Fleet issue and its over-willingness to discover a conspiracy by the employer against the employee so as to lead to its finding that it was for that motive that the employer did not take any reasonable steps to secure alternative employment for Mr Gregory following his disqualification from driving. He argued that the Tribunal placed weight, in addition, upon the fact, as it thought, that another employee who had been disqualified, albeit for medical reasons, from driving had been found a job as a shunter-driver (paragraph 2.3.13). That was in stark contrast to the way in which the employer had treated Mr Gregory. However, Mr Northall pointed out that the comparison as described by the Tribunal was a false one. Again, it was common ground between Mr Healey and Mr Northall before us that the person there referred to was not redeployed as a shunter-driver; he had been redeployed as someone who checked the temperatures of trailers, although it was equally common ground that from time to time whilst fulfilling that role he might be asked to shunt trailers around the yard. This was therefore an overstatement by the Tribunal, a misapprehension of fact, relied upon in part for its conclusions in respect of Mr Gregory.
25. For the employees, Mr Healey submitted that there was no particular significance in the expression "One Fleet"; there was ample evidence that Mr Stone and Mr Gregory were both being asked to or required to work from Heywood when neither thought that their contracts required them to do so. Whether that be described as a policy or not was beside the point. The essential findings of the Tribunal were to be relied upon. The Tribunal was entitled to take account of the degree of similarity between the matters giving rise to the warning and those for which discipline was now being applied. He sought to argue that the Tribunal plainly did take the view that the first warning given to each man was invalid as having offended against the principle expressed in Stein and Davies; that was plainly, he argued, what the Tribunal really felt about the matter, as shown by its Judgment throughout but in particular those passages to which we have already referred at paragraphs 2.2.7 and 4.1.5. He argued that Mr Gregory was not treated fairly in the employer's consideration of whether alternative employment was available.

Discussion

26. The law is by now relatively well established. The decision in Stein came for further consideration and was approved by the Court of Appeal in Tower Hamlets Health Authority v Anthony [1989] ICR 656. That again was a case in which, like Stein, the issue was what reliance could or should be placed by a Tribunal upon the fact of an earlier warning if that earlier warning was under appeal. In Stein the conclusion had been that an employer did not have to disregard a warning merely because it was under appeal; that was argued, but it was rejected (see paragraphs 7 and 8 of the Judgment of the Employment Appeal Tribunal, presided over by Lord McDonald MC). In Anthony the employer had dismissed an employee for disruptive conduct; she had earlier been given a first formal warning, as to which she had expressed a wish to appeal. When she complained that she had been unfairly dismissed, the Industrial Tribunal held that since the appeal had not been determined, the warning could not be taken into account in determining whether the dismissal had been fair. The Employment Appeal Tribunal dismissed the employer's appeal, but, on further appeal to the Court of Appeal, the appeal was allowed; as the headnote makes clear, where the contract of employment provided that a warning was a prerequisite to the employee's dismissal and an appeal against such a warning, which had been given on adequate evidence and for a proper motive, was pending, both the warning and the fact that it was subject to an undetermined appeal were circumstances that should be taken into the account by the employer when considering whether to dismiss the employee and by a Tribunal in determining whether the dismissal was fair. Thus the Industrial Tribunal had erred in disregarding the warnings because they were still under appeal.
27. In Davies the Tribunal had regarded as relevant the fact that there had been no appeal against a final warning. Failure to appeal in the circumstances of the case did not denote acceptance of the correctness of the warning. What was said was this:

"28. [Counsel for the Appellant] points out that the focus of the Employment Tribunal has to be on the final decision to dismiss; that those who are operating and subject to internal disciplinary procedures are entitled to conclude that those procedures will have some significant degree of finality, particularly if a decision is taken, an appeal offered, but not taken up. He says that it would be contrary to policy and inconsistent with the decision in [Stein] for the validity of a final warning to be subject to the same test, and therefore the same potential level of scrutiny, as the decision to dismiss. In our judgment, he is correct in his concern. He is also correct in the way he reads the decisions in Stein and [Anthony].

29. The test required by Stein to be satisfied before it will be appropriate for an ET to look behind a final warning is deliberately couched in more exacting terms than the test for unfairness in respect of a dismissal. Provided the final warning has been issued in good faith and there are prima facie grounds for it, or, to put it another way, provided the warning has not been issued for an oblique motive or has not been manifestly inappropriately issued, the employer and the employment tribunal is entitled to regard the final warning as valid for the purposes of any dismissal arising from subsequent misconduct, provided that the subsequent misconduct is such that when taken together with the final warning a dismissal, or the decision to dismiss, is a reasonable one."

28. The Tribunal went on to point out that in the case of Co-operative Retail Services Ltd v Lucas UKEAT/0145/93 Sir Richard Buxton had observed that where the test described in Stein had been satisfied then any warning was in employment terms a nullity so that it had to be ignored for any subsequent purpose.
29. Taking that law, we turn to the case of Mr Stone. We acknowledge that the Tribunal may have blown hot and cold as to the appropriateness of the first warning. Though it did not address directly the test posed in Stein, Anthony and Davies, it did conclude, in the second sentence of 4.1.5, that the warning was valid. Accordingly, it could not look behind it in the sense that it could not ask whether it, the Tribunal, would regard that warning as having been a justified one. There is every good reason for that. What is in issue in the case of any dismissal alleged to be unfair for which conduct is an accepted reason is whether the employer acted reasonably or unreasonably in treating that reason as the reason for dismissal. The focus required by statute is thus on the employer's actions and not upon the actions of the employee. Hence where an employer has given a warning in good faith, the view of an Employment Tribunal as to whether it, the Employment Tribunal, would itself have given the warning or whether it should have been given by the employer is beside the point; the employer is entitled to think at the time of dismissal for later misconduct that the warning should have been given, and the employer's actions in response in that light to any new misconduct must be judged on the basis that the employer is entitled to take that view. Where the employer knows, as the employer generally will, that the warning is the subject of challenge, plainly the employer will wish to consider whether that challenge moderates the employer's own view of the warning, and it will be right for the Tribunal to take that into account in assessing the circumstances. That approach, soundly based in section 98(4) of the Employment Rights Act 1996, both underlies and explains the principles concisely expressed in Anthony and Davies.
30. Accordingly, when the Tribunal here said, "All we are saying at this stage is that his conduct and demeanour was not culpable misconduct in the circumstances known and reasonably believed by him at that time", the Tribunal was taking account of an irrelevant consideration. It was looking not at whether the employer was entitled to rely upon the warning; it was looking, rather, at whether the warning was justified. The circumstances of the warning – that is, the offence to which it is said to relate – are plainly relevant, but it is not a circumstance of the warning that it was or it was not justified or unjustified; that is a judgment about it which it was no part of the Employment Tribunal's function to make once it had decided the preliminary question of whether it had been made in bad faith and without reasonable grounds for making it.
31. Accordingly, in our view, the Tribunal was in error of law in its approach. This does not stand alone as an example of where the Tribunal was effectively putting itself into the shoes of the employer and taking a decision that it had no right to take. Thus at paragraph 2.2.5 the Tribunal found as a fact in respect of the matter giving rise to the first warning that Mr Stone had made his objection to working from Heywood clear in a reasoned and reasonable manner:

"His is attitude and action in raising this issue could not reasonably have been interpreted as amounting to misconduct, the Tribunal is satisfied that he did not act in an objectionable manner. He raised his genuine grievance appropriately and in good faith."

32. It went on in the next paragraph to say how he had refused politely and consistently in line with the stance he had taken over the terms of his contract and, as pointed out in his argument by Mr Northall, went on in the very next paragraph to regard the employer as having effected an amendment to the contract, i.e. of having asked Mr Stone to do something that his contract of employment did not require him to do. All those matters are matters that seek to go behind the warning; indeed, if instead of a warning there had been a dismissal, Mr Northall points out, and we accept, a Tribunal would not be entitled to substitute its own view of what it would have done in the circumstances or how it would have viewed the conduct of the employee. It must put itself into the shoes of the employer and ask whether, viewed from that perspective, the actions of the employer were or were not reasonable or unreasonable. The Employment Tribunal thus acted toward the first warning in a way that was more generous to the employee than would have been the case if the employee had been raising a claim for dismissal, had that been the penalty instead of a warning.
33. The errors in paragraph 4.1.5 do not stop there. The Tribunal went on to say the warning should have been held in abeyance and should be revisited as and when the contractual issue is resolved. We understand the Tribunal to be saying that the warning should not have been paid regard to at all; what else do the words "held in abeyance" mean? If that is so, then it is directly contrary to the law that we have set out, which is to the effect that an employer is obliged to have regard to a warning. The weight that he places upon the warning is another issue, but that the employer is entitled to place weight upon it is beyond doubt. Here, this Tribunal were denying that entitlement.
34. That echoes the approach taken by the Tribunal in paragraphs 4.1.1 and 4.1.2. These are not easy paragraphs to understand. We acknowledge that the decision of a Tribunal must not be expected to be a finely honed piece of legal draughtsmanship. It is intended, rather, to convey to the parties why one has lost and the other won, in broad terms. However, although paragraph 4.1.2 follows the question of whether misconduct had been repeated in 4.1.1 by saying there was no similarity, and although that might be read as suggesting that it was a relevant consideration to have regard to the extent of similarity between the misconduct for which the warning was given and the later misconduct under scrutiny, it might also be read, as Mr Northall urged us to read it, as the Tribunal regarding a lack of similarity as dispositive of the case.
35. The Tribunal went on in the second sentence of 4.1.2 to say that it was not reasonable to, and no reasonable employer would, conflate those acts treating them as together justifying dismissal. That is surprising, given the view that is generally to be taken of the status of a warning. A warning for conduct may have greater force if subsequent conduct is of the same type, but it cannot, in our view, sensibly be suggested that if an employee, for instance, is successively convicted of a number of separate acts of misconduct, each quite different from the other but each justifying a warning, then the employer would not be entitled to have regard to the totality of the employee's behaviour. In the case of a final warning, the industrial members of this Tribunal in particular are clear that the usual approach will be to regard any further misconduct as usually resulting in dismissal, though not necessarily inevitably so, whatever the nature of that later misconduct. In this respect, we consider that Mr Northall's reliance upon the ACAS Code is well placed.
36. The Tribunal in the third sentence of paragraph 4.1.2 indicates that it had in mind the approach that Mr Northall condemns and that goes beyond merely taking into account the degree of similarity. There seems no point in referring to the view of the Appellant's managers at first instance as to each incident taken on its own, if the Tribunal was taking the view that they should be taken together, but that the issue was the weight of one in relation to the other, as opposed to it taking the view that they required to be viewed separately because they were different in type. We regard the latter as the likelier view that the Tribunal is expressing, given in particular what is further said at 4.1.5 as to the need to hold the warning in abeyance.
37. We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer's act in treating conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:

(1) The Tribunal should take into account the fact of that warning.

(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.

(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.

(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alert to give proper value to all those matters.

(5) Nor is it wrong for a Tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.

(6) A Tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.

38. We have found it, therefore, unnecessary in the light of our findings as we have already expressed them to consider whether the Appellant is right to suggest that the Tribunal here materially misapprehended the facts in saying what it did about the employee's approach to the One Fleet policy. It seems to us that the argument for the Appellant is a formidable one, but the essence of what occurred was, as Mr Healey submits, a refusal by Mr Stone, and by Mr Gregory initially, to work from Heywood in the light of a supposed contractual dispute. We do, however, accept that the references to a "settled and known practice" that were in part material to the decision as to dismissal were in error, given the agreement before us that the only evidence before the Tribunal as to any previous dismissal was in respect of one case alone. Given that that case did not involve personal injury to a fellow worker nor, so far as we are informed, did it involve the case of an employee who was on a warning, it seems to us that the Tribunal could place no reliance on it.
39. For those reasons, we consider that the appeal in respect of Mr Stone is well founded.
40. In respect of Mr Gregory, the employer does not contend that it had no obligation to seek to place Mr Gregory in the circumstances in suitable alternative employment with it. The Tribunal assumed that there was such an obligation. There has been no appeal against that. Mr Healey relies upon it, and Mr Northall expressly does not dissent from it. Accordingly, we proceed to determine this appeal upon the basis that it is accepted between the parties that there is such an obligation. We would not want this Judgment to be understood as our endorsement of that position for other cases. We have heard no argument, and we do not therefore resolve the point, but it seems to us to be highly arguable that, when an employee is dismissed from the job that he has been employed to do in circumstances in which he cannot be expected legally to continue doing it, such as driving when he is barred from driving, that an employer may owe no such duty. That remains for a court considering other cases in other circumstances to determine.
41. Here, however, we are asked to hold that the Tribunal was in error in its approach to Mr Gregory's case because of its over-enthusiasm for finding ulterior motives in that which the employer had done in respect of both employees. We have not been invited to consider the evidence as a whole. We were not the Tribunal before whom the witnesses appeared and were subject to examination. The allegation that the witnesses faced was not that of a conspiracy as found, if one were to judge from the originating application, but that application did raise the question of whether both employees had been dismissed for a reason other that conduct, that being alleged to be the assertion of a statutory right. Accordingly, we infer that questions were asked and that the Tribunal was in a position to judge motivation.
42. We do not need, it seems to us, to consider the question of motivation in order to determine the appeal of Mr Gregory, however, given the findings of fact of the Tribunal. There is no challenge to the finding of fact that Mr Gregory was encouraged to think that the employer would consider whether there were reasonable opportunities for him elsewhere in its employment. The Tribunal found those assurances to be false. There is no challenge to the fact that the employer told Mr Gregory that he would be dismissed and could submit any job application he thereafter wished as an external candidate and hence in no better a position. Given the acceptance of the duty to which we have referred, it seems to us that the Tribunal was fully entitled to conclude that the employer was not acting reasonably in all the circumstances of the case, in particular paying regard to the size and the administrative resources of the employer's undertaking.
43. We have therefore come to the view that, despite the eloquent submissions of Mr Northall, the Tribunal was entitled in Mr Gregory's case to come to the conclusion it did.

Conclusions

44. Accordingly, we allow the appeal in the case of Mr Stone; we dismiss the appeal in the case of Mr Gregory.

Consequence

45. Mr Northall has asked us to exercise our own powers to determine the case of Mr Stone. We decline to do so. Given the way in which this Tribunal faced both ways, it might be thought, in deciding the preliminary question posed by Stein and Davies whether the first warning was in good faith and reached upon a proper basis, there may be some facts which properly determined might lead it to the conclusion it reached; but they might not. The Tribunal, it seems to us, should and would wish to have careful regard to the factors we have set out for its guidance more generally earlier in this Judgment. We consider that the assessment of what is reasonable is essentially the task of the Employment Tribunal rather than that of the Appeal Tribunal. It may be argued that in the particular circumstances of this case, given the pending challenge to the warning, that the circumstances of the offence, serious though they may be thought, might not have resulted in dismissal. It may be the case that a Tribunal, noting that normally circumstances such as these in the presence of a prior warning for conduct would result in dismissal, would take a different view. Hence, since it seems to us possible that a Tribunal properly directed may take either approach, we consider it a judgement for the fact-finding rather than the appellate Tribunal.
46. In the event that we were to determine that the case should be remitted, Mr Healey would invite us to remit it to the same Tribunal. Mr Northall would object; he would regard this Tribunal as having so expressed itself and so firmly taken a view of the employer's conduct that it would be wrong for that Tribunal to hear and determine the matter again. We have regard to the fact that in our view the Judgment is seriously flawed. We have acknowledged that there may be substantial force in criticisms of some of the factual findings and whether there was any proper evidential basis to support them; in that light, having had regard to the factors mentioned in Sinclair Roche & Temperley v Heard [2004] IRLR 763, we have concluded that this case must be remitted to a separate, fresh Tribunal, who will sadly, but inevitably, have to rehear the entirety of the case.
47. We should make it plain that on remission it will be open to either party to put such evidence as it wishes before the Tribunal. If a challenge is to be made to the validity of the warning, then that must be made clear in advance by Mr Stone; in any case in which such a challenge is to be raised, it ought to be made clear at an early stage by the person making it, and the burden lies upon he who seeks to show that the employer has acted in bad faith. So it is in this case. We do not therefore restrict either party on remission to the same evidence as was called in the hearing now under consideration.
48. On that basis, the appeal in respect of Mr Stone is allowed, with the consequences we have identified.