Fair Warning

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 Court of Appeal said that it was not for tribunals to decide whether the final warning should have been issued or not, but rather to apply the objective statutory test of reasonableness.

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 and EAT decisions

The tribunal decided that the decision to dismiss was for a conduct reason; that it 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.

Although it expressed concerns about deficiencies in the Council's procedure and about the adequacy of its investigation, the tribunal said Ms Davies could have pursued an appeal against the warning, but chose not to do so. The Council accepted that, had it not been for the final written warning, it would not have dismissed her.

After a number of re-hearings in various tribunals, Ms Davies was given permission to appeal on one limited ground. That is, whether the final written warning should be treated as null and void because the Council chose not to consider evidence which, objectively viewed, might have made it reconsider whether the alleged misconduct had happened which meant it might not have issued the warning.

Decision of Court of Appeal

The Court of Appeal said that the test to decide whether a dismissal was fair or not in a case involving a prior final warning was the one laid down in section 98(4) of the Employment Rights Act 1996. In other words, whether it was reasonable for the employer, given all the circumstances of the final written warning, to decide that the employee’s conduct warranted their dismissal.

When considering that question, it was not for the tribunal to decide whether the final warning should have been issued or not. Instead its role was to apply the objective statutory test of reasonableness to determine whether the final warning was something that a reasonable employer could reasonably take into account when deciding to dismiss the employee for subsequent misconduct.

Tribunals could, however, consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning.

The tribunal in this case, having made all the relevant findings of fact, was right to conclude that the Council had taken the final warning into account properly when it decided to dismiss Ms Davies and the dismissal was therefore fair.