When deciding whether or not it is reasonable for an employer to dismiss an employee, the tribunal may look behind the employer's decision to issue a prior final warning even where the employee failed to appeal that prior final warning.

Davies - Key facts

The Claimant, a teacher employed by the Respondent, was given a final written warning as a result of complaints about her conduct. Following advice from her union representative, the Claimant withdrew her appeal against the warning based on suspicion that a re-hearing may result in her dismissal. Further complaints were made about the Claimant, half of which were upheld at a disciplinary hearing. The Respondent dismissed the Claimant on the basis that any of the allegations coupled with the written warning were sufficient to justify her dismissal. The Claimant denied the allegations and made a procedural complaint about how her final written warning disciplinary hearing had been conducted as the Respondent had refused to grant an adjournment in order to allow her to admit relevant evidence.

Davies - the decision

The EAT held that the tribunal could look behind the validity of the Respondent's final written warning notwithstanding the Claimant's failure to appeal. In reaching this decision, the EAT highlighted that the reason for the employee not pursuing the appeal did not involve any explicit or implied admission that the allegations against her were true. The case was remitted to the same tribunal to consider whether the Claimant's dismissal was fair.

Sakharkar - Key facts

The Claimant was dismissed for breach of the Respondent's absence policy. However, there had been an error in the application of the policy as a warning was issued at the third stage which the Claimant had not qualified for. Neither the Respondent nor the Claimant realised that a mistake had been made and the decision was not appealed by the Claimant. As a result of this warning, the Respondent moved the Claimant on to the fourth stage of the procedure where he was dismissed.

Sakharkar - the decision

The EAT noted that pursuant to section 98(4) Employment Rights Act 1996, the size and administrative resources of the Respondent's undertaking is key to the question of whether the Respondent had acted reasonably in treating the employee's failure to comply with its absence policy as a sufficient reason for dismissal. The Respondent had a HR department which was given responsibility for recording absence levels and ensuring fair and consistent application of the policy. The EAT therefore found that the Respondent had acted unreasonably in dismissing the employee. Furthermore, the fact the Claimant had not appealed the warning did not prevent the court from revisiting the circumstances in which the warning was made.

What this means for employers

These decisions demonstrate the tribunal's ability to revisit a prior final warning when deciding whether or not it was reasonable for an employer to dismiss an employee – even where the prior final warning is not appealed by the employee. Employers, particularly those with significant administrative resources and HR departments, should ensure that their policies and procedures are applied fairly and should be extra vigilant when final warnings are issued which may subsequently be relied on to justify dismissal.

Davies v Sandwell Metropolitan Council UKEAT/0416/10 and Sakharkar v Northern Foods Grocery Group Limited t/a Fox's Biscuits UKEAT/0442/10.