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1 February 2013 0 Comments
Posted in Employment, Opinion

Final Written Warnings and Dismissal

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Can an employer take into account a final written warning in a decision to dismiss? And what should a Tribunal look at in determining whether this is reasonable?

In Davies v Sandwell, the Court of Appeal held that an employer’s issue of, and reliance on, a Final Written Warning in defending a decision to dismiss, could not be challenged unless that warning was issued in bad faith or was manifestly inappropriate.

The Claimant was dismissed for misconduct. In considering whether or not to dismiss, the Respondent considered a previous written warning. The Claimant had challenged the warning saying that she had not committed the alleged misconduct and argued that the validity of the warning should be considered as part of her unfair dismissal claim.

The Court of Appeal did not agree, holding that the role of the Tribunal was to consider the fairness of the dismissal, which included deciding whether or not it was reasonable to rely on a previous warning. However this did not go as far as deciding whether the warning should have been issued in the first place. Only if there was an exceptional case of a warning being issued in bad faith or being manifestly inappropriate should a Tribunal conclude it was unreasonable to rely on it.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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