London Borough of Brent v Fuller

This case considers whether an employer dismissing for misconduct can take into account a previous incident of misconduct which did not result in formal disciplinary action. By Nick Hobden and Ben Stepney

Mrs Fuller was an administrator at a school for children with social and emotional difficulties. Her role did not involve contact with pupils. In May 2007 there was an incident involving the restraint of a pupil. This lady intervened. The head told her that she should not interfere with the discipline and restraint of pupils.

A similar incident occurred in October 2007 where a disruptive pupil was being restrained. Again Mrs Fuller intervened, making comments about the method of restraint and that it should stop.

Following the second incident, she was suspended and faced gross misconduct charges of "repeated and inappropriate intervention into behaviour management issues" and "failure to follow reasonable management instructions". She was subsequently dismissed. The school's appeal panel found that the decision to dismiss was justified, amongst other reasons, as she had been warned by the head after the first incident about improper intervention into matters of pupil discipline.

The decision
The employment tribunal concluded that Mrs Fuller had been unfairly dismissed. It found that the school had wrongly taken into account the May incident in determining the gravity of the misconduct and it was wrong to rely on this incident in justifying the dismissal.

The Employment Appeal Tribunal (EAT) allowed the school's appeal. The EAT took into account that the school was unique and faced unique problems. The teachers had been trained to deal with unruly pupils. Mrs Fuller had not. The school was entitled to find that her intervention in the second incident was sufficiently serious to warrant dismissal and that she should have been aware that she should not intervene in matters of restraint.

The EAT said the school was entitled to take into account the first incident as background to the second incident. The first incident showed that Mrs Fuller was aware she should not interfere. The EAT found that the head did not issue a disciplinary warning after the first incident but an instruction not to get involved when a pupil is being restrained. The fact that F ignored this explicit instruction during the October incident was relevant to the gravity of the misconduct.

Comment
This case suggests that earlier misconduct can be relied on later, even if it does not result in a disciplinary warning but a reprimand or an instruction not to repeat an action. However, it is still safer to issue a warning for all serious misconduct and certainly for any behaviour that, if repeated, could lead to dismissal. This would comply with the ACAS code of practice, which generally requires an employee to be given a warning for a first instance of misconduct.

If you are dealing with a situation where you want to take into account an employee's previous conduct which has not been dealt with under the disciplinary code, then in the right circumstances you may be entitled to consider an employee's previous misconduct, even if the employee received no formal sanction. Any such instances should be used as background information only, for example, to show that the employee should have been aware that such conduct was unacceptable.

If you are going to rely on a first incident, you must ensure that the grounds for disciplining are clear. In a case such as Mrs Fuller's, the employer should make it clear that the grounds for disciplining are misconduct arising from the second incident (only) and a failure to follow a reasonable management instruction given after the first incident.

Nick Hobden is a partner and head of the Employment Team, and Ben Stepney is a solicitor, at Thomson Snell & Passmore. 

Return to Employment