The claimant in Way v Spectrum Property Care Ltd was dismissed for misconduct for sending inappropriate emails in breach of the employer’s policy, following an earlier final written warning for breaching company policy on not hiring friends or relatives.  At the Employment Tribunal hearing he sought to argue that the warning had not been given in good faith (asserting that the breach had been sanctioned by the person who investigated it).  The Judge refused to allow this and went on to find that the dismissal was fair in the light of the warning.

The EAT decided that the Employment Judge ought to have investigated the claimant's complaints about the warning but that, even if it had been shown to have been in bad faith, it would have made no difference to the finding that the claimant had been fairly dismissed in reliance on the warning.

The test in relation to misconduct dismissals and prior final warnings is whether it was reasonable for the employer to treat the misconduct, taken together with the warning, as sufficient to dismiss.  It is not the function of the tribunal to reopen the circumstances of the warning and rule on whether it should have been issued.  It does not matter if (as inWay) the offence for which the warning was issued was for conduct of a different nature; the question is simply whether the employer was entitled to rely on the warning.

However, the Court of Appeal decided that, in the particular scenario inWay, a warning given in bad faith should not be taken into account in deciding whether there was sufficient reason to dismiss the employee. In other words, the rule that the tribunal does not look behind a warning only applies where it is given in good faith.  If there is any suggestion that the warning was inappropriate because it was not given in good faith, the tribunal must take this into account when considering reasonableness. 

The case was sent back to tribunal stage to consider the fairness or otherwise of the dismissal.