In the case of London Borough of Brent v Fuller, the Employment Appeal Tribunal said that when deciding whether to dismiss for gross misconduct, employers can take into account a previous incident for which no formal warning was given. However, the incident has to be similar and it has to be clear that the employee is aware of the issue.
The case: a school for children with social and emotional difficulties and one of their administrative staff. She intervened in a pupil disciplinary issue and was told that this was unacceptable, though no formal disciplinary action was taken. She intervened in a similar incident five months later and was dismissed for gross misconduct.
The Employment Tribunal held that she had been unfairly dismissed as the dismissal arose from a one-off incident and no formal warning of that type of behaviour had been given. The Employment Appeal Tribunal held that all matters, whether formal or informal, relating to a dismissal were relevant. So the informal warning given at the first incident could be considered. The employee would have known her behaviour at the second incident was unacceptable, having been previously (though informally) warned.
While this case can be of help to employers who have failed to follow best practice disciplinary process, remember that it is always sensible to issue a verbal or written warning for all serious misconduct and definitely for any behaviour that, if repeated, could lead to dismissal.