In Davies v Sandwell Metropolitan Borough Council, the Court of Appeal has held that only in limited circumstances will a tribunal hearing an unfair dismissal claim be entitled to ‘re-open’ an employer’s decision to issue a final warning on which the employer later relies when deciding to dismiss for a further act of misconduct.
D, a science teacher in one of the Council’s schools, was suspended in October 2004. She returned to work in March 2005 having received a final written warning. She sought to invoke the appeal procedure so as to introduce new written evidence undermining the credibility of the complaint against her at a rehearing. However, she did not pursue this as her trade union representative warned that an unsuccessful appeal could result in an increased sanction. Following further complaints, D was dismissed in September 2006. The Council’s decision took account of both the final written warning and further complaints. She claimed unfair dismissal, complaining, among other things, about the issue of the final warning.
The employment tribunal expressed concerns about deficiencies in the Council’s procedure and about the adequacy of the investigation undertaken before the issue of the warning. However, it noted that D had an opportunity to appeal against the warning, but had not done so. The tribunal concluded that the decision to dismiss D was within the range of reasonable responses; that the existence of the final written warning was essential to the decision; and that the dismissal was fair. After a number of reviews and appeals the tribunal confirmed this decision in a further judgement. D appealed.
Paul Burton, Employment Solicitor, says “The Court of Appeal confirmed that it is legitimate for employers 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 it must not have been manifestly inappropriate to issue it.” Where there has been no appeal against a final warning, or where an appeal has been launched but not pursued, there would need to be exceptional reasons for going behind the earlier disciplinary process and in effect re-opening it.
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