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.  However, the EAT dismissed the appeal because it would have made no difference to the finding that the claimant had been fairly dismissed.  The employer was entitled to rely on the warning, for the following reasons:

  • Both incidents involved breach of company policy.  The warning had specifically encouraged the claimant to read and abide by company policies. 

  • The warning was not challenged at the disciplinary hearing and the claimant indicated that he understood about the final warning and said that he had tried to "move on".  

  • During the appeal against his dismissal his points about the warning had been investigated and rejected; no complaint was being made about the conduct of that appeal.  

  • The manager who had issued the warning was not involved in the disciplinary hearing leading to the dismissal or the appeal.

Two cases last year – Davies v Sandwell MBC and Wincanton Group plc v Stone have made the position on prior final warnings very clear.  The test 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.  By the same token, it does not matter if (as here) 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.