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When can an employer rely on a final warning in deciding to dismiss?

01 March 2013 #Employment


Two recent cases have explored the circumstances in which a Tribunal can examine the validity of a previous warning, which formed part of the employer’s decision to dismiss an employee.

The Court of Appeal confirmed in the case of Davies v Sandwell that only in limited circumstances will a tribunal be entitled to `re-open` an employer`s decision to issue a final warning, which the employer later relies on in deciding to dismiss the employee.

The employee, a teacher in one of the Council`s schools, was suspended in October 2004 and returned to work in March 2005 having received a final written warning. She tried to appeal the warning by providing evidence which undermined the credibility of the complaint against her. However, she did not pursue her appeal as her trade union warned that she could receive an increased sanction if she was unsuccessful. Following further complaints, the employee was dismissed in September 2006. The Council took the final written warning into account when deciding to dismiss.

The Court of Appeal held that the validity of the final written warning should not be considered as part of the employee’s unfair dismissal claim. The tribunal`s role is to ask whether it was reasonable for the employer to treat the employee`s conduct, taken together with the final written warning, as sufficient reason to dismiss. It is not the tribunal`s function to re-open the final warning and rule on whether it should have been issued. The Tribunal should only conclude it was unreasonable to rely on it in exceptional cases of bad faith, where the warning was manifestly inappropriate (see below) or where there were no prima facie grounds for following the final warning procedure. In particular, where an appeal against a warning has not been pursued, there would need to be exceptional reasons for going behind the earlier disciplinary process and, in effect, re-opening it.

In another case, Simmonds v Milford Club, the Employment Appeal Tribunal has provided guidance on when a previous disciplinary sanction is “manifestly inappropriate”.

In this case, the employer relied on the employee’s final written warning in deciding to dismiss the employee for misconduct. This earlier warning was given following an incident in which the employee’s wife had deposited the Club’s takings whilst the employee waited in his car, as was unable to park and deposit the money himself. Whilst the Club was concerned that they were not insured when money was not in an employee’s custody, the employee had not been properly briefed and there were no written procedures regarding this. 

The EAT’s held that the Tribunal should have considered whether the final written warning was manifestly inappropriate. The case has therefore been remitted back to the original Tribunal to consider this. The EAT confirmed that it is only where on the facts there is a real concern that a sanction may have been manifestly inappropriate that it will be necessary for a Tribunal to engage in a factual inquiry and detailed scrutiny of the circumstances in which that sanction was applied.  It also noted that ‘manifestly inappropriate’ was a higher threshold than the ‘reasonableness’ of a dismissal test.

Comment: These cases both confirm that employers can take into account previous warnings in deciding the appropriate sanction during disciplinary proceedings. However care should always be taken to follow your Disciplinary Policy at each stage to ensure that you can show that the eventual dismissal is fair.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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