Mr Simmonds worked as a steward for a private members’ club. He was given a final written warning after he allowed his wife to drop in the club takings to the bank when he could not get parked nearby. He was then dismissed for misconduct following another incident where he gave employees a Christmas bonus of £15.00 in cash, instead of a bottle of wine to that value as instructed.

The Employment Tribunal considered the earlier warning when determining if the subsequent dismissal was fair. The Tribunal considered the circumstances of the previous warning as there was an argument that Mr Simonds had been unaware he was breaching procedure and no written guidance was in place. The majority considered that it was reasonable to take into account this previous warning and decided the dismissal was fair. Mr Simmonds appealed arguing that the Tribunal failed to apply the correct test as to whether the final warning should have been relied upon to decide that the dismissal was fair. He contended the question was whether the warning was manifestly inappropriate. If it was, the warning should have been disregarded and the Tribunal's assessment of the fairness of the dismissal would, therefore, have been different from that which they reached.

The EAT stated that it is only where on the facts there is a real concern that a sanction may have been manifestly inappropriate that it will be necessary for an Employment Tribunal to engage in a factual inquiry and detailed scrutiny of the circumstances in which that sanction was applied. “If an Employment Tribunal has cause on the facts to consider that a material previous disciplinary sanction may have been manifestly inappropriate, it should hear evidence and decide on the relevant facts whether the sanction applied was manifestly inappropriate.” In this case, the Employment Tribunal did not do so, and the appeal was allowed. http://bit.ly/YItHFu