Employers considering dismissal in reliance on a previous ‘live’ disciplinary warning should ensure that any allegations that the warning was given in bad faith have been properly investigated. It will not be fair to dismiss in reliance on a warning given in bad faith, even if the employer reasonably but wrongly concluded that there was no bad faith.

In this case an employee was given a final written warning for assisting an ex-partner’s son to obtain employment with his employer, in breach of their recruitment procedure. He claimed that the manager had sanctioned the recruitment while aware of the personal connection, and then issued a disciplinary warning to cover up his own involvement. The employee had asked about appealing the warning but been wrongly told that, if he did so, there was a risk that the sanction would be increased to dismissal, so he decided not to appeal. He was then dismissed on grounds of subsequent misconduct (not justifying dismissal on its own) together with the ‘live’ warning. The Court of Appeal ruled that the tribunal should have determined whether the warning had been given in bad faith; if so, it would not be reasonable to rely on this in deciding to dismiss.

Employers should therefore ensure employees are not discouraged from appealing from disciplinary warnings, particularly if there is a suggestion of bad faith on the part of the relevant manager. Where the allegation of bad faith is only raised at a later date, when dismissal is being considered for further misconduct in light of the warning, it should be properly investigated at that point, prior to the decision on dismissal. The warning should not be taken into account if there has been bad faith. (Way v Spectrum Property Care)