In Davies v Sandwell Metropolitan Borough Council, Davies appealed against a final warning, arguing that she had been prevented from producing evidence that would have shown that the events which formed the basis of the disciplinary action could not have happened, but did not pursue her appeal when a union representative advised her that the Council might re-visit the sanction and dismiss her. The final written warning was ‘live’ when further misconduct was alleged and was taken into account when it was decided to dismiss her. The ET found that the Council had issued the final written warning in good faith, as there had been evidence to sustain it. Therefore Davies had been fairly dismissed. The Court of Appeal upheld the ET’s decision, confirming the principles outlined by the EAT in Stein v Associated Dairies Ltd [1982] IRLR 447 that it will be legitimate for an employer to rely on a final warning as long as it is issued in good faith, that there had been at least prima facie grounds for imposing it and that it had not been manifestly inappropriate to issue it.
Comment: The Court has reinforced the need for a restrictive approach to the question of when it is legitimate for an ET considering the fairness of a dismissal to go behind a final written warning given in the past. In applying the reasonableness test it is not the tribunal's function to re-open the final warning and rule on whether the final warning should have been issued and whether it was legally valid or a nullity. The upshot is that whether the 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 are all material factors in assessing the reasonableness of the decision to dismiss and employers should not provide grounds for an ET to open the door and examine the legitimacy of previous disciplinary action.
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