An employer was entitled to rely on a final written warning when dismissing an employee, even though that employer had not considered evidence casting doubt on the allegations when it issued that final warning. Will Walsh from the Employment Team explains further.

In Davies v Sandwell Metropolitan Borough Council the Court of Appeal decided that an employer was entitled to rely on a final written warning when dismissing an employee, even though that employer had not considered evidence casting doubt on the allegations when it issued that final warning.

In February 2005 Miss Davies was given a final written warning for alleged misconduct, which was to remain on her personnel file for 24 months. Miss Davies appealed against the decision initially, on the grounds that she believed that she had evidence disproving the allegations against her, but she had been prevented from producing that evidence at her disciplinary hearing. However her trade union representative advised her that if she appealed, there was a possibility that the Council might reconsider its decision to give a warning and choose a sanction of dismissal instead. On that basis, Miss Davies withdrew her appeal. This meant that the warning was still on her record when further allegations of misconduct arose. The Council took that warning into account and dismissed her.

The Council accepted that it would not have dismissed Miss Davies if the final written warning had not been on her file. Therefore the key issue in the case was whether the Employment Tribunal could examine the validity of that warning.

The Court of Appeal decided 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 was not manifestly inappropriate to have issued it. The employer must act reasonably in reaching its decision to dismiss and whether or not to take a warning into account is part of that assessment of reasonableness.

Commenting on the impact of Miss Davies' failure to appeal against the warning, the Court of Appeal's view was that this was not a determining factor on its own; however it could be relevant to the overall assessment of whether or not the warning had been given appropriately and, therefore, to the question of whether the employer had acted reasonably by taking it into account when deciding to dismiss.

What does this mean for employers?

The decision gives employers encouragement in its endorsement of the view that it will not be the job of the Employment Tribunal to examine to validity of each warning that formed part of the overall dismissal process. There need only be an assessment of whether those warnings were issued in good faith and that it was not manifestly inappropriate for them to have been given. However, these same issues highlight an important point for employers to remember when they are conducting dismissal procedures. It is very common for the decision maker to take it as a given that a final written warning was issued correctly, particularly when the employee has not appealed against the decision; that approach is dangerous. The decision maker should still ensure that he or she is satisfied that the warning, or warnings, were issued in good faith and that they were not manifestly inappropriate. The fact that an employee did not appeal may well be relevant in reaching a conclusion on this point; logic dictates that an employee would have appealed if the grounds for the warning were entirely invalid. However this should not be assumed; the employee may have had other reasons for choosing not to challenge the decision.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.