The question of whether a final written warning given in bad faith can be relied on by an employer in a subsequent dismissal for unrelated misconduct was considered by the Court of Appeal in the case of Way v Spectrum Property Care Ltd (22 April 2015).
In cases involving cumulative warnings a tribunal normally limits its enquiries to considering whether the final warning was something that a reasonable employer could reasonably take into account when deciding whether to dismiss the employee for subsequent misconduct. However, a tribunal could re-open the circumstances of a previous warning if:
(a) the warning was issued in bad faith;
(b) there were no plausible grounds for issuing a final warning; or
(c) there is real concern that the warning was manifestly inappropriate.
The case of Way
Mr Way was a recruitment manager at SPC Ltd. He was given a final written warning for assisting the son of a friend secure employment with SPC Ltd in contravention of the company’s policy on fair recruitment. He subsequently breached the company policy in relation to computer usage by sending inappropriate emails. At the time of the disciplinary hearing, Mr Way still had a live final written warning and SPC Ltd dismissed him with notice. Mr Way alleged that the final written warning had been given in bad faith because the disciplining officer had covered up his own involvement in the recruitment process. The Employment Tribunal found that the dismissal was fair and did not look into the background to the final written warning. Mr Way appealed to the Employment Appeal Tribunal who held that even if ‘bad faith’ had been found, this would not have made any difference to the finding that Mr Way had been fairly dismissed.
Mr Way appealed to the Court of Appeal who held that a warning given in bad faith is not to be taken into account in deciding whether there was sufficient reason for dismissing an employee. The Court stated that this was another case where the Employment Tribunal had taken short cuts by limiting the investigation into the circumstances of the final written warning. The case has been remitted back to a fresh tribunal to consider whether the final warning was given in good faith and the fairness of the dismissal in light of that.
Employers are advised to remain alert to employees trying to defend current disciplinary allegations by trying to unpick earlier disciplinary warnings. Where such a challenge is raised by an employee then the employer should go through a reasonable process in considering whether the earlier warning was issued in bad faith or manifestly inappropriate on the facts. If the employer is satisfied that the earlier final warning was given in good faith and that there were plausible grounds to issue it then it can disregard the employee’s arguments that relate to the earlier warning when considering what action to take.
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