Picture the scene: a teacher has an active final written warning on her file which she did not appeal at the time it was issued. She commits a further serious disciplinary offence. What do you do? Move straight to dismissal without too much thought to the circumstances in which the warning was issued? Wrong - detention and 100 lines - according to the EAT in Davies v Sandwell Metropolitan Borough Council…

The case involved a science teacher who was sacked with notice after committing further acts of misconduct whilst subject to an active final written warning. Davies had been given a final written warning for inappropriate conduct in a lesson following a disciplinary hearing. However, not all of her evidence had been considered at the hearing as she had not complied with internal rules for submitting it. Crucially, the evidence that was not considered just so happened to seriously undermine the allegations against her, including proof two pupils who had made allegations against her were absent on the day in question! After initially requesting an appeal by way of re-hearing, Davies changed her mind and abandoned the appeal for fear that the appeal panel may have increased the sanction to dismissal.

Davies' unfair dismissal claim centred on whether her employer should have taken the above circumstances into account when deciding whether to dismiss in reliance on the active final written warning.

The tribunal felt that the hearing which resulted in a final written warning should have been adjourned - clearly the employer hadn't done its homework and properly investigated the facts! However, the tribunal felt that, because Davies was given the opportunity to present the missing evidence at a re-hearing on appeal but decided not to, the employer was right to rely on the final written warning. The EAT did not agree with this school of thought; it held that an invalid final written warning could not be saved by the absence of an appeal. This was all the more so in this case where not pursuing the appeal did not involve any explicit or implied admission that the allegations were true. Relying on the active final written warning was therefore unreasonable and the dismissal was unfair.

This means that relying, without question, on the fact of an active final written warning could be a school-boy error. The circumstances of the final written warning will need to be looked at before it is used to justify a dismissal. You can avoid getting into such a pickle by ensuring that the seriousness of final written warnings are properly recognised and ensuring that the sanction is reasonable and only handed down having followed a proper process, particularly a thorough investigation. Such precautions should mean that final written warnings can be taken at face value. However, if you want to be a complete teacher's pet it is always worth ensuring the robustness of the final written warning before relying on it to dismiss.