EMPLOYMENT LAW

Under s 98(4) of the Employment Rights Act 1996 (ERA 1996), it is open to a tribunal to find that a dismissal for misconduct was fair, even though the employer took account of the employee’s previous similar misconduct, which had been the subject of an expired final warning.

The question to be determined under s 98(4) is whether or not the employer had acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee. The fact that the warning had expired did not make the earlier misconduct an irrelevant circumstance under s 98(4).