Misuse of staff discount card did justify dismissal

CIPD: Previous written warnings not necessary for gross misconduct proceedings, says Court of Appeal. In the case Adegobola v Marks & Spencer Plc [2013 EWCA Civ 1808], the Court of Appeal confirmed that an employment tribunal should not undertake an investigation into the circumstances surrounding the issuing of a final written warning, prior to dismissal, unless there is evidence that the warning was issued in bad faith.

The decision provides some reassurance to employers in that it confirms claimants will usually not be able to get a tribunal to look into what lay behind previous warnings in unfair dismissal proceedings.


Adegobola received a final written warning and was involved in a further incident three months later. During an investigation into the latter incident, she admitted to misusing her staff discount card which was classed by her employer as an act of gross misconduct. She was dismissed and her internal appeal was rejected.


Adegobola brought claims for unfair dismissal and unpaid wages which were dismissed by the employment tribunal. It was satisfied that:

  • her employer believed that she had misused her store card
  • had treated that misuse as a gross misconduct offence, justifying dismissal
  • both this belief and the employer’s subsequent actions were reasonable.

In reaching its decision, the tribunal commented that it was not entitled to reopen the incident leading to the final written warning which was already on the claimant’s record. It also noted that it was not necessary for it to do so, as she had been dismissed properly for gross misconduct (the previous warning, therefore, having not being relied on). The employee appealed the decision on the basis that the tribunal was wrong to say that it could not consider the final written warning.

Court of Appeal

The Court of Appeal confirmed that a tribunal should not pass judgment on the matters on which a final written warning is based, provided it is satisfied that the warning was issued in good faith and was not manifestly inappropriate. While the employment tribunal was not quite correct to say that it could not consider the warning, the Court of Appeal was satisfied that the tribunal must have concluded, in determining the question of unfair dismissal, that there was no bad faith on the part of the employer. It rejected Adegobola’s appeal.


This decision, and previous ones on the issue, help employers in that they limit the circumstances in which an employee can refer to the reasonableness of previous disciplinary sanctions when trying to challenge a subsequent dismissal. In gross misconduct cases it is also advisable for employers to state clearly, in the dismissal letter, that while it is relevant that an employee has a final written warning on record, the decision would have been to dismiss in any case due to the seriousness of the offence.

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