In two recent cases, one before the Court of Appeal and one before the Employment Appeal Tribunal ("EAT"), consideration has been given to the circumstances in which a Tribunal should "look behind" a final written warning, and consider the circumstances in which it was given, when an employer has relied upon that final written warning to later justify dismissal of an employee.

In the case of Davies v Sandwell Metropolitan Borough Council, D, a teacher, was given a final written warning for alleged misconduct, which was to stay on her disciplinary record for 24 months. She initially appealed the sanction, alleging that she had been prevented from producing evidence that supported her case. However, she ultimately withdrew the appeal when her Union advised her that the sanction may be increased to dismissal on appeal. A year later, further misconduct was alleged, and as D had a final written warning, she was dismissed.

D brought a claim for unfair dismissal, claiming that the Council would not have dismissed her but for the final written warning, and the final written warning was unreasonable, as she had been prevented from producing evidence in support of her case. She alleged that dismissal was therefore not reasonable in all of the circumstances. The Tribunal, however, held she was fairly dismissed, and her appeal against that decision has now been rejected by the Court of Appeal.

In rejecting the appeal, the Court confirmed that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it, and that it was not manifestly inappropriate to have issued it. It is not the Tribunal's function to re-open all final warnings and rule on whether the final warning should have been issued. The Tribunal's function was to apply the objective statutory reasonableness test to determine whether the final warning was something that a reasonable employer could reasonably take into account when deciding whether to dismiss the employee for subsequent misconduct. In this particular case, the Tribunal had not erred in concluding that the Council had issued the final written warning in good faith, that it had not been manifestly inappropriate to issue it and that there had been evidence to sustain it. D's appeal therefore failed and the Tribunal's finding of a fair dismissal stood.

Meanwhile, the EAT has heard an appeal in the case of Simmonds v Milford Club, also raising the question of when a Tribunal should concern itself with the appropriateness of a final warning preceding a dismissal.

S, the Club Steward of Milford Club, a private social club, was issued with a final warning after he had asked his wife to deposit the club's takings in the bank on his behalf, while he waited outside in the car, having been unable to park near the bank. Later, he was then disciplined for giving staff a £15 Christmas bonus in cash, instead of a bottle of wine up to the value of £15 as instructed. Because he was already under a final warning for the banking issue, he was dismissed. S argued that his dismissal was unfair, as the final written warning had not been reasonable, as he had not been aware of the rules applicable to him in relation to the banking procedures.

The EAT, in overturning the Tribunal's decision that S had been fairly dismissed, confirmed (like the Court of Appeal in Davies did) that only where, on the facts, there is a real concern that a final warning may have been "manifestly inappropriate" will it be necessary for a Tribunal to engage in a factual inquiry and detailed scrutiny of the circumstances in which that warning was applied. It held that "manifestly inappropriate" was a higher threshold than the test of reasonableness applied to a dismissal. The EAT concluded, however, that there was such cause for concern about the warning issued in this case, and that the Tribunal had failed to give full consideration to the appropriateness of the warning. The EAT therefore overturned the Tribunal's decision that the dismissal was fair, and remitted the case back to the Tribunal for further consideration.

Points for Employers

  • These decisions are useful for employers in confirming that it will only be in rare cases, where there is real evidence that a final written warning has been inappropriate, that the employer should consider looking into the facts behind that final written warning, before relying upon it to later justify a dismissal.
  • Normally, in the absence of any suggestion that the final written warning was issued "manifestly inappropriately" (which is a higher test than unreasonably), employers are entitled to take into account live warnings when considering whether to dismiss an employee for subsequent misconduct. What any Tribunal will then consider is whether it was reasonable for the employer to have treated the employees conduct, taken together with the previous warning, as a sufficient reason to dismiss.