In Trye v UKME Ltd, Trye (T) had been issued with a final written warning relating to various acts of misconduct including a failure to follow company procedures. A disciplinary hearing was subsequently held while that warning was in force concerning unauthorised absence. When the warning was referred to in the hearing, and T was asked what steps she had taken to improve her conduct, she said she had not done anything wrong then or now. T was summarily dismissed for being absent without providing a medical certificate, failing to follow the correct procedure for reporting absence and not responding to a request about the reasons for her absence.

An ET rejected T’s unfair dismissal claim. It found that the reason for dismissal was logical and understandable.  T had been given a final written warning which, although not related to absence, arose in part from a failure to follow procedures. T had then failed to inform the employer when her absence extended beyond the terms of her medical certificate. She had given inconsistent accounts of the incident and ultimately maintained that she had done nothing wrong. Therefore, it was unsurprising that T had been dismissed. T appealed, arguing that the conduct which led to the decision to dismiss was not serious enough to warrant dismissal because if no final warning had been in place, dismissal would not have been within the range of reasonable responses.

The EAT rejected T’s appeal. It held that her submission went “nowhere”, because this was a case in which there had been conduct that led to the decision to dismiss and there was a current final warning that was still in force.  Further, it is clear from the Court of Appeal’s decision in Airbus UK Ltd v Webb, that even an expired final warning can be a relevant consideration when an ET considers whether dismissal falls within the range of reasonable responses; this strengthens the proposition that if a final warning is still current when the conduct to which the dismissal as a response occurs, then a dismissal is capable of being within the range of reasonable responses. Therefore, the ET had not erred in its approach in finding that the dismissal was fair.

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