Similar Incidents May be Taken into Account in Gross Misconduct Dismissals

The Employment Appeal Tribunal (EAT) has held in London Borough of Brent v Fuller UKEAT/0453/09 that when coming to a decision on whether to dismiss an employee for gross misconduct, an employer can take into consideration a previous similar incident for which no formal warning has been given.

Mrs Fuller was a school administrator. In May 2007, she intervened when teaching staff were restraining a difficult child and was immediately told by the school not to interfere in matters of discipline or behavioural restraint. The incident was not followed up by any formal discussion or disciplinary action. After a similar but more serious incident occurred a few months later, Mrs Fuller intervened again which resulted in her being dismissed by the school for gross misconduct. This included "repeated and inappropriate intervention into behaviour management issues" and "failure to follow reasonable management instructions".

In reaching its decision to dismiss, the school took into account that, because of what had been said to her at the incident in May, Mrs Fuller knew that she should not have interfered when the later incident occurred. The EAT overturned the Tribunal's decision of unfair dismissal. The incident in May was part of the relevant background to the later incident for which Mrs Fuller was dismissed. It held that the Tribunal had incorrectly substituted its own view rather than considering what would have been within the band of reasonable responses for an employer in this situation and held that Mrs Fuller's dismissal was fair.