The claimant in Davies v Sandwell Metropolitan Borough Council had been given a final written warning for alleged misconduct. The warning was to remain on her record for two years. She lodged an appeal, arguing that she had not been able to produce evidence in her defence. However, in the event she did not pursue the appeal and consequently the final written warning was on her record when the Council decided to dismiss her the next year following a further allegation of misconduct.

In the Court of Appeal, the issue was whether the final written warning on which the Council relied should be treated as a nullity, given that, although there was evidence to support the decision to issue it, the employers had deliberately chosen not to consider evidence which might have made them believe that the misconduct had not been committed, leading to a decision not to issue the warning.

The Tribunal, whilst expressing concerns about deficiencies in the Council's procedures, concluded that the decision to dismiss based on the warning did fall within the "range of reasonable responses", given that the employee had not actually appealed.

When the case eventually came to the Court of Appeal, it reiterated that it is legitimate for an employer to rely on a final warning, provided it was issued in good faith, there were at least on the face of it grounds for imposing it and it was not "manifestly inappropriate".

The essential point is that the test in a situation where there has been a prior final warning 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.

This ties in with the decision in Wincanton Group plc v Stone, where the EAT held that the fact that the employer had taken into account a previous warning which was not in respect of similar conduct and was the subject of an ongoing dispute did not make a dismissal unfair. Again, the question was whether the employer was entitled to rely on the warning, not whether the warning was justified.