In the case of Davies v Sandwell Metropolitan Borough Council (2013), the Court of Appeal considered whether a written warning could be relied upon by an employer when dismissing an employee.
Ms Davies was dismissed for misconduct by the Council. When making the decision to dismiss, the Council took a previous warning into consideration. Ms Davies said that the warning was not valid because she claimed she had not committed the misconduct that resulted in the warning. She argued the validity of the warning should be considered as part of her unfair dismissal claim.
The Court of Appeal did not agree with Ms Davies argument. The role of the Employment Tribunal was to consider whether the dismissal was in the ‘band of reasonable responses’ open to her employer. This did not involve deciding whether the warning was valid or should have been issued in the first place. The decision of the Employment Tribunal that Ms Davies dismissal was fair was upheld.
The Court of Appeal added that there can be exceptions to this, such as where warnings are issued in bad faith or are manifestly inappropriate, and in such circumstances an Employment Tribunal may conclude it was unreasonable for an employer to rely on such a warning.
There is nothing new in this ruling by the Court of Appeal, but it is a useful reminder that employers must act fairly and reasonably when considering disciplinary sanctions, particularly where past sanctions are considered as part of the process. Clearly expired warnings or incidents that occurred some time in the past are unlikely to be something an employer should usually rely on.
If you would like to talk through a disciplinary matter you are dealing with, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).