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Failure to appeal final warning irrelevant to fairness

BY Donald MacKinnon
Employment Law & HR
BG Purple

The EAT, in the case of Davies v Sandwell Metropolitan Borough Council, has overturned an employment tribunal's finding of a fair dismissal, holding that the tribunal had erred in treating an employee's decision not to appeal the issuing of a previous final warning as a relevant factor in assessing the reasonableness of a later decision to dismiss.

In the particular circumstances of that case, the fact that the employee has chosen not to appeal the decision to issue a final warning did not suggest that the employee accepted the allegations resulting in the final warning were true. The employee had in fact produced evidence at the original disciplinary hearing that the allegations raised against her lacked credibility, but the disciplinary panel had refused to consider the evidence produced on the basis that it had not been provided seven days in advance of the hearing as was required under the policy. On the advice of her trade union, who feared that a rehearing of the case could result in an increased sanction including dismissal, the employee did not appeal the final warning issued.



Further similar allegations were raised about the employee's conduct and at a subsequent hearing a decision was made to dismiss the employee, in reliance upon the fact that there was a live final warning on file. The EAT accepted that, as a general rule, tribunals should not sit in judgement on whether a final warning was reasonably issued. However, the tribunal should at least be satisfied that the warning was issued in good faith and there were grounds for such a sanction. If, on the face of it, the issuing of the warning was clearly inappropriate or oppressive, the tribunal should take this into account in assessing any decision to rely upon it when dismissing for a later offence. The fact that in this case the employee did not appeal a clearly unfair decision to issue a warning was not relevant.

The case is an important reminder to employers that the issuing of a final warning does not automatically mean that any subsequent offence (no matter how trivial) will allow the employer to dismiss fairly. The employee's behaviour must be worthy of the ultimate sanction of dismissal. Further, tribunals will look at the process leading up to the dismissal decision to ensure that it has been carried out fairly and not oppressively.





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