This is your final warning!

Friday 26 April 2013

The purpose of any disciplinary procedure is to help and encourage all employees to accomplish and sustain standards of conduct, attendance and job performance.  It is this area of law that employers often require the most advice on.

Fairness of an Old Warning 

An interesting question has recently been raised in case law on this subject: is the Tribunal interested in the fairness of old warnings in a claim for unfair dismissal?  Surprisingly, perhaps, the answer is: only in very limited circumstances.

Only if Manifestly Inappropriate

In the unfair dismissal case of Davies v Sandwell MBC , the Court of Appeal has recently decided that the fairness of previous written warnings should not be considered by the Tribunal unless they were issued in “bad faith” or were “manifestly inappropriate”. In this case, Miss Davies, a teacher, was dismissed for misconduct. In coming to their decision to dismiss, her employer had considered a previous final written warning that was on her file.

In the case, Miss Davies alleged that the warning previously given to her was wrong, as she said she had not committed the alleged misconduct (it is worth nothing that she had previously appealed the final warning internally but the appeal was never heard and it remained on her record).  She argued that the fairness of that warning should be considered as part of her unfair dismissal claim.

The Court of Appeal  disagreed and decided that the Employment Tribunal’s role was to consider the fairness of the dismissal only.  The Court of Appeal decided that it was the Tribunal’s role to decide whether it was reasonable for an employer to rely on a previous written warning but that did not mean that the Tribunal had to decide whether that previous warning was necessarily fair. 

Managing Employment

This decision reminds us of the importance to keep on top of managing your employees’ conduct. If acts of misconduct do occur in the workplace it is important that employees are given the correct warnings and those warnings are recorded on file.  It is all too easy to “let things go” in the hope that the employee’s conduct will get better. The problem being, if employees have not been reprimanded for previous acts of misconduct, it makes life difficult when more serious incidences of misconduct arise. The case highlights that it is difficult for an employee to bring a successful case for unfair dismissal if the employer has acted in accordance with its own procedure and issued the employee with previous warnings.