The Court of Appeal decided last week that a disciplinary warning given in bad faith is not to be taken into account in deciding whether there was sufficient reason for dismissing an employee. An employer would not act reasonably if it took into account such a warning when deciding whether the employee’s conduct was sufficient reason for dismissal.


In the case of Way –v- Spectrum Property Care Limited, Mr Way was employed as a recruitment manager. He was given a final written warning in 2010 for assisting an acquaintance to obtain employment with his employer, in breach of their fair recruitment procedure. Whilst that warning was still ‘live’, Mr Way sent a number of emails in breach of company policy, which would attract a final written warning, but by totting the two warnings together he was dismissed for misconduct.

Mr Way claimed unfair dismissal and alleged that the earlier final written warning had been given in bad faith because the manager in charge of that disciplinary hearing had sanctioned the recruitment and then covered up his own involvement.

The law

Employers are entitled to take live warnings on an employee’s personnel file into account when issuing disciplinary sanctions. It is fairly settled law that a tribunal should not decide whether the employer should have given an earlier warning, if it was satisfied that the warning had been issued in good faith and there were prima facie grounds for issuing it. A tribunal is only entitled to look behind a warning if there is evidence to suggest that it was issued for an oblique motive, or had been manifestly inappropriate.

In this case, the Employment Tribunal refused to hear evidence on whether the first final written warning had been issued in bad faith, referring to it as ‘irrelevant satellite litigation’. The Employment Appeal Tribunal believed that the employment judge ought to have investigated the first written warning, as the claimant had done enough to raise a case that the warning had been given in bad faith. However, it went on to conclude that as this warning was valid ‘on its face’ and had not been challenged on appeal by Mr Way it could not have made any difference to the claimant’s fair dismissal.

The claimant appealed to the Court of Appeal, which criticised both the Employment Tribunal and the Employment Appeal Tribunal, accusing it of taking ‘inappropriate shortcuts’ in dealing with the evidence. It held that an employer would not be acting reasonably in taking into account a final written warning when deciding whether to dismiss that employee, where that warning was held to have been issued in bad faith. The Court of Appeal remitted the claim to a freshly constituted Employment Tribunal to consider whether or not the claimant had indeed been unfairly dismissed.

In practice

When considering a disciplinary sanction in a ‘totting up’ process, if the employee alleges that an earlier warning was given in bad faith, the disciplinary officer should consider whether there are any grounds for looking behind that warning, particularly where a totting up process will lead to dismissal. Keep a good note of any consideration or investigation that takes place in particular why the earlier warning was not appealed at the time if that is the case.