When disciplining an employee with a “live” final warning, it is generally fair for the employer to rely on that warning and dismiss the employee, provided that it was issued in “good faith”.  The recent Court of Appeal decision in Way v Spectrum Property Care is a reminder that this is not always straightforward.  Mr Way had received a final warning for recruiting a friend’s son in contravention of the Company’s fair recruitment policy.  Whilst this final warning was still live on his file, he was disciplined for sending offensive emails.  The emails alone would not have justified dismissal, but because of the final warning on his record, he was dismissed.

Whilst the Employment Tribunal and Employment Appeal Tribunal both found the dismissal fair, the Court of Appeal said there was sufficient information to question whether the final warning had been issued in good faith, or whether the manager involved was protecting himself in the process.  As a result, the case went back to the Tribunal for this issue to be considered.

Employers therefore need to ensure that when seeking to dismiss in these circumstances, there are no issues around the final warning which may reasonably lead to the conclusion it was issued in “bad faith”.