In the recent case of Davies v Sandwell Metropolitan Borough Council the Court of Appeal considered how an employment tribunal should act in a case of a dismissal after a final written warning.

In this case, the employee had been given a final written warning for misconduct, to remain on her personnel record for 24 months, and had then committed a further act of misconduct within that period and had been dismissed.

The previous warning was relevant as, in considering whether a dismissal is fair, a tribunal is required by law to consider all the circumstances of the case.

However, the claimant wanted to raise issues about the previous warning – she said the employer had chosen not to consider certain evidence and there had been procedural irregularities and, although she had intended to appeal the warning, the appeal had been aborted only for organisational reasons.

The Court of Appeal has confirmed that it is not the function of the tribunal, and the EAT, to ‘re-open’ the previous warning.

If a warning has been issued in good faith, where there were prima facie grounds to impose it and it was not manifestly inappropriate to do so, the tribunal should accept it at face value as part of the background circumstances relevant to the subsequent dismissal

Points to note –

  • Although the Court of Appeal was not asked to consider this point, it commented that, in a case like this, it should be reasonable for the employer to take into account not only the previous warning but also the fact that the employee had not taken her appeal through to a conclusion.
  • Disciplinary procedures properly implemented will enable employers to dismiss fairly employees guilty of persistent misconduct