May 21, 2015

Warning in bad faith cannot be used to justify dismissal

The Claimant was employed as a recruitment manager and was given a final written warning for assisting an acquaintance to obtain employment with the company, in contravention of the company’s procedures. He subsequently sent a number of inappropriate emails which were found to be in breach of company policy. Since his final written warning was still live he was dismissed for his conduct following a disciplinary hearing. He brought a claim for unfair dismissal alleging, amongst other things, that the final written warning had been given in bad faith because the manager in charge of the disciplinary proceedings was covering up his own involvement in the breach of the recruitment procedure. The Employment Judge took the view that this evidence was not relevant and refused to hear it, finding that the dismissal was fair.

On appeal to the EAT it held that there was sufficient evidence that the warning had been given in bad faith and the Employment Judge should have considered this. However it also found that, even if the warning had been given in bad faith, the dismissal was still fair. The Court of Appeal allowed the Claimant’s appeal, holding that a warning given in bad faith in these circumstances should not be taken into account in deciding whether there is sufficient reason to dismiss. It considered that the EAT had erred in law in deciding a dismissal would not have occurred had it not been for the bad faith warning. The case has been remitted to a differently constituted Tribunal to decide on the matter of unfair dismissal.

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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