The recent case of JJ Food Service Limited v Kefil concerned a manager, Mr Kefil, who was dismissed due to his management style.

Mr Kefil’s behaviour was so bad that his staff collectively signed a letter of complaint against him. His behaviour was described as discriminatory, threatening, bullying, and amounting to harassment; there were also inferences about violence. As a result of the letter, JJ Food Service Limited gave Mr Kefil a warning about his behaviour, which firmly stated that it was unacceptable. However, the warning did not state that a continuation of this behaviour would lead to his dismissal.

Mr Kefil did not modify his behaviour following the warning and consequently was dismissed.

The Employment Tribunal found that although his behaviour was particularly bad, his dismissal was unfair because he had not been told that his behaviour could lead to his dismissal. The Employment Tribunal held that Mr Kefil had not been trained to manage staff and therefore he could not be expected to know that his behaviour could lead to dismissal without being expressly told.

This is an odd case, as that most managers should not need to be told that it is unacceptable to threaten and bully their workers or that such behaviour may result in dismissal. It is to be hoped that such a strange decision will not be followed in future cases, but it does give us a lesson in the importance of clearly worded warnings.

In Davies v Sandwell Metropolitan Borough Council, Ms Davies was subject to a final written warning, which was to remain on her personal record for a period of 24 months. Ms Davies was given the opportunity to appeal that final written warning and did not do so. It was her position that her appeal had been aborted only for organisational reasons and not because of any lack of intention on her part.

She subsequently committed a further act of misconduct whilst the final written warning was still in force and was dismissed. She brought a claim for unfair dismissal and asked the Employment Tribunal to review the final written warning.

The case went all the way to the Court of Appeal which held that it is not the function of the Employment Tribunal (or the Employment Appeal Tribunal) to reopen a previous warning where that warning has been issued in good faith in circumstances where there are reasonable grounds to impose that warning and where that warning has not been appealed.

This is encouraging news for employers as often an employee will not raise an issue with a disciplinary warning until such time as they are dismissed at which point they may seek to unpick the whole disciplinary process from start to finish. It would appear that the Employment Tribunal will have little appetite for doing this where the employee has not made proper use of the appeals procedure.

For more information on this subject or any other queries about employment law, please contact Kate Booth on 01484 821309 or at katebooth@eatonsmith.co.uk
Posted Tuesday 20th of August 2013