In Davies v Sandwell Metropolitan Borough Council, the EAT has held that an employee’s failure to appeal against a final warning did not prevent a tribunal from looking behind the validity of that warning when considering the reasonableness of a decision to dismiss. The fact that there was no appeal against the written warning does not save it from invalidity.
Ms Davies, a teacher, received a final warning based on allegations concerning inappropriate conduct during a lesson. At the disciplinary hearing Ms Davies produced evidence which undermined the allegations, but the committee refused to admit it because it had not been produced 7 days before the hearing according to procedure. She appealed against the final written warning. The appeal would have been by way of a re-hearing, but, on advice from her union that the Council might revisit the sanction and dismiss her, Ms Davies dropped her appeal. Following five further allegations of misconduct which were upheld, the Council determined that this, together with her final warning, justified dismissal.
The Tribunal upheld the dismissal, primarily on the basis that Ms Davies had chosen not to appeal against the warning, so the Council were entitled to take the it into account and the dismissal was within the range of reasonable responses. In upholding Ms Davies’ appeal, the EAT held that the tribunal had not considered the validity of the final written warning. Her failure to appeal did not imply that the allegations made against her were true – she did not appeal because of the advice given to her by her union. Therefore the tribunal should not have assumed that, because of the failure to appeal, the final written warning was valid. The fact of no appeal against a final written warning does not save it from invalidity.
The lesson is that a final warning which is found to be invalid by a tribunal but which an employer has relied on in reaching a decision to dismiss can have serious consequences in the context of an unfair dismissal claim. In such cases, employers will not escape liability just because the employee chooses not to appeal.
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