Guest post by Elizabeth Stern, Employed Barrister

Interesting Judgments on final written warnings and more besides have recently emanated from LJ Mummery and LJ Lewison in the Court of Appeal in Davies v Sandwell Borough Council [2013] EWCA Civ 135. In addition to considering whether an employer can rely on a final written warning when dismissing an employee, the Lord Justices took the opportunity to give their own warnings.

Ms Davies, a teacher, received a final written warning that she appealed against but the appeal never took place. Whilst the warning was still live, she was dismissed by the Council for further alleged misconduct. There is a complex procedural background to this case involving it ping-ponging between the Tribunal and the EAT. I won’t go into all that here; suffice it to say that Ms Davies’ appeal from the EAT to the Court of Appeal was on narrowly formulated grounds which were solely about whether the final written warning should be treated as a nullity on the particular facts of the case.

LJ Mummery dealt specifically with the final warning point by approving the principles laid down in Stein v Associated Dairies Limited [1982] IRLR 444 and Tower Hamlets Health Authority v Anthony [1989] IRLR 394; in order for a tribunal to question the imposition of a final warning, it must be either bad faith, an oblique or improper motive or be manifestly inappropriate.

However, he prefaced this, firstly, by reinforcing the fundamental importance of the statutory test of reasonableness laid down in S98(4) Employment Rights Act 1996; was it reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant? In his Judgment, cases were but instances of the application of s.98(4) to particular sets of facts. Secondly, the function of Tribunals was to apply the statutory reasonableness test and not to re-open the circumstances of the issuing of the final warning.

LJ Lewison, a self-confessed newcomer to the field of employment law, weighed in by delivering a slap on the hand to Tribunals and, indirectly, to claimants and their representatives. He said that a Tribunal’s function was to review the employer’s decision and not to conduct a primary fact-finding exercise. In this case, much of the evidence that the Tribunal had heard was irrelevant, adding to costs and wasting court time. He urged Tribunals to take a firm grip on the case.

As this is a Court of Appeal case, it would be wise for Tribunals and for lawyers to heed the Lords Justice’s warnings when preparing for and hearing misconduct cases: do not re-open the employer’s investigation; apply the guiding principle of the statutory reasonableness test and case manage robustly.

With regard to the final warning itself, the Lords Justice held that the Tribunal did not err in law by concluding that the final written warning was properly relied on by Ms Davies’ employer. Showing that the imposition of a final written warning is manifestly inappropriate or was bad faith is not going to be easy, although coincidentally, another case concerning reliance on a final warning in the EAT – Simmonds v Milford Club (UKEAT/0323/12/KN) – has just been remitted to the Tribunal to determine whether the final written warning was manifestly inappropriate, so watch this space.

Any views or opinions expressed in this post are solely those of the author who is writing in a personal capacity