WARNING LIGHTS

Davies v Sandwell Metropolitan Borough Council

When deciding whether a dismissal is fair or unfair, tribunals have to take a range of factors into account. But what about warnings that are still current? In Davies v Sandwell Metropolitan Borough Council, the Employment Appeal Tribunal (EAT) considered the circumstances in which a tribunal can “look behind” a final warning.

Basic facts

Ms Davies was a science teacher at Willingsworth High School where she had worked since 2003. Following a verbal warning in September 2004 for “inappropriate conduct” during a lesson, she was suspended a month later.

She received a final written warning in February 2005 based on a single allegation concerning her conduct in that lesson. She initially appealed the decision, but decided not to proceed because she was concerned that the sanction might be increased to dismissal.

She returned to work in March but was then suspended again in early 2006. The disciplinary panel upheld five of the ten allegations against her and, taking the final written warning from the year before into account, decided to dismiss her.

She claimed unfair dismissal. The school argued that any one of the five findings of misconduct, coupled with the final warning, was enough to cross the threshold whereby the decision to dismiss was within the range of reasonable responses.

Tribunal decision

And the tribunal agreed although it found that, of the five allegations on which the school had relied, only two justified dismissal.

It therefore upheld the school’s decision to dismiss, saying that the final warning had been issued in good faith. The school had offered re-hear her case (and the fresh evidence she wanted to present), but as she had chosen not to proceed, the governors had been entitled to proceed on the basis of an existing final written warning.

However it said that had she been dismissed for the first incident alone, it would have found the dismissal unfair because the school had not investigated it thoroughly enough.

EAT decision

The EAT, however, disagreed. It said that the tribunal had misdirected itself when it took into account the fact that Ms Davies did not appeal against the final warning when considering whether or not the dismissal was fair.

Referring to the cases of Tower Hamlets Health Authority v Anthony and Stein v Associated Dairies, the EAT confirmed that the existence of a final written warning is relevant.

Whether an appeal against the warning is ongoing is also a relevant factor for the tribunal to take into account. The lack of an appeal does not automatically mean it should not question the previous warning.

As the court said in Stein v Associated Dairies Ltd: “If the warning was in employment terms a nullity, failure to appeal against could not improve it."

In this case, Ms Davies had not pursued the appeal, because she accepted her union rep’s advice that there were significant dangers in taking up the offer to have her case re-heard. The EAT distinguished this from cases in which an employee does not appeal because they accept the allegations against them. In this case the EAT said that the tribunal should have considered why Ms Davies had not continued with her appeal. Had it done so, it would not have disregarded the appeal.

The EAT remitted the case to the same tribunal to consider the question of fairness or unfairness, bearing in mind the tests identified in Stein and Tower Hamlets, but disregarding the fact that Ms Davies had not appealed the decision of the first disciplinary hearing. The EAT also directed the tribunal to take into account the procedural defects in the final written warning procedure which it had already identified.