![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201509.jpg)
Dismissals triggered by Final Warnings
[ch 9: pages 64-65]An employee with a Final Warning risks dismissal if they reoffend while the Warning is still in force, or “live” (in other words, while the time span of the Warning has not yet lapsed). The EAT has said that as a general rule, misconduct during the life of a Final Warning is likely to result in a fair dismissal (Wincanton v Stone [2012] UKEAT 0011/12/1110).
There is no rule that to trigger a dismissal after a Final Warning, the conduct triggering the dismissal must be the same kind or the same level of seriousness as the conduct that led to the Warning. However, the employer should give less weight to a warning if the circumstances are unrelated than if they are directly relevant.
Whether or not a dismissal triggered by a Final Warning is fair will depend on the overall reasonableness of the dismissal given all the circumstances, including whether the employee took up the chance to appeal against the Warning.
If no appeal is offered, any dismissal triggered by the Warning is likely to be unfair.
Tribunals do not normally re-examine the facts that led to a Final Warning to decide whether it should have been given in the first place. The only exception is where there is evidence that the Warning was given in bad faith, for an improper motive or was manifestly inappropriate:
Ms Davies was a science teacher issued with a 24 month Final Warning. At the hearing that led to the Warning, the school relied on witness statements which Davies believed were the product of collusion between pupils and parents who wanted her sacked. For example, some of the children concerned did not seem to have been in the lesson complained of. Davies asked for the hearing to be adjourned to investigate her allegations, but her employer refused, instead issuing the Warning.
A further incident of misconduct during the life of the Final Warning led to her dismissal. Her claim of unfair dismissal reached the Court of Appeal. The Court of Appeal ruled that the dismissal was fair. It said that when deciding whether a dismissal triggered by a live Final Warning is fair, tribunals should apply the normal “reasonableness” test for unfair dismissal cases. In other words, tribunals must look at all the surrounding circumstances, including the live Warning and the conduct that triggered the dismissal, to decide whether the dismissal is fair. Tribunals must not re-examine the facts behind the Warning to judge whether the employer acted fairly in issuing the Warning unless there is evidence that it was issued in bad faith or for an improper motive, or was manifestly inappropriate.
Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139
Here is a rare example of a case in which a Final Warning was judged manifestly inappropriate:
Mr Simmonds, a club steward with ten years’ service, got a Final Warning for letting his wife carry the day’s taking into the bank when he couldn’t find anywhere to park. The misconduct that triggered the dismissal during the life of the Warning was giving members of staff a £15 Christmas cash bonus, when his boss had instructed that the gift was to be a £15 bottle of wine. The EAT said the Final Warning was “manifestly inappropriate”. In particular, Simmonds had been given no training, or shown any written procedure on how to bank takings. The dismissal was unfair.
Simmonds v Milford Club [2012] UKEAT/0323/12/0612
A Final Warning given in bad faith must not be relied on when deciding to dismiss, and any resulting dismissal will be unfair (Way v Spectrum Property Care Limited [2015] EWCA Civ 381).
Looking behind a disciplinary warning to see why it was given, or ignoring a disciplinary warning, is not normally a reasonable adjustment for a disabled worker (General Dynamics IT Limited v Carranza [2014] UKEAT/0107/14).