The Court of Appeal in Way v Spectrum Property Care Ltd has overturned the EAT’s finding that a final written warning given in bad faith could be relied upon to justify a later dismissal for unrelated misconduct. The tribunal had refused to hear evidence on whether the warning was given in bad faith. On appeal, the EAT found both that the warning had been given in bad faith, but also that the employer had been entitled to rely on it when reaching the decision to dismiss. The Court of Appeal overturned the EAT’s decision and the case will now be remitted back to a fresh tribunal.

In this case, the employee had not appealed against the warning at the time (his evidence being that he was told that if he appealed he would be dismissed). He did, however, allege that the warning had been issued in bad faith during the disciplinary process which led to his dismissal. The case is therefore a useful reminder to employers that it is dangerous to take an earlier warning at face value if the employee questions its validity in a subsequent disciplinary procedure. In those circumstances, the manager conducting the disciplinary should investigate the allegation about the warning as part of the disciplinary process. Failure to do so will render the dismissal unfair if it later transpires that the warning was given in bad faith.