To what extent can a Tribunal look into previous written warnings given to an employee when deciding whether a subsequent dismissal was fair?
It is unusual to see the Court of Appeal (CA) overturn an Employment Appeal Tribunal (EAT) decision which upheld the initial decision of the Tribunal, but this is exactly what happened in the recent case of Way v Spectrum. In the process the CA reminded employers when to exercise caution in taking into account previous warnings when dismissing employees.
The claimant was given a final written warning for helping a friend obtain employment in breach of his employer’s fair recruitment procedures. The claimant was subsequently disciplined for sending some emails which were deemed inappropriate. The original written warning was still “live” and therefore the claimant was dismissed for misconduct.
The claimant claimed unfair dismissal arguing that the final written warning had been given in bad faith. He alleged that his manager, who was responsible for the disciplinary process, covered up his own involvement with the erroneous appointment of the friend. The Tribunal judge held that the nature of the first warning was effectively irrelevant and refused to hear evidence of alleged bad faith in relation to that warning and therefore rejected the claim. The Tribunal took the view that the key thing was that the employee had a final written warning on record at the relevant time.
When the case was appealed to the EAT they concluded that the Tribunal should have listened to the evidence of bad faith in relation to the warning but went on to conclude that it would not have made a difference and therefore rejected the appeal.
The CA took the view that an employer could not act reasonably if they were taking into account a warning which was manifestly inappropriate or given in bad faith and sent the case back to a different Tribunal to hear evidence about the circumstances in which the warning was given, which the EAT seemed reluctant to do. In the process the CA were in many ways confirming the current position recently outlined by the EAT case of General Dynamics Information Technology Ltd v Carranza which I blogged about recently here.
The decision nevertheless gives employers and tribunals food for thought and possibly introduces unwelcome uncertainty as to the extent to which previous warnings should be taken into account in an unfair dismissal case. Is it enough for the dismissed employee to argue retrospectively that a previous warning was given in bad faith, even if they never argued that at the time? If that is their argument then does the Tribunal hearing about unfair dismissal have to encompass all of the evidence about the previous warnings? Arguably the correct approach is for an employee to appeal against the warning at the time and if that appeal is rejected and they consider that the warning was given in bad faith or was discriminatory then they have the option of pursuing a claim and/or resigning and claiming constructive dismissal at that point. Of course, that would be a big decision for any employee to have to take.
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