Dismissals where a written warning had no appeal

Looking at live warnings

When considering whether or not to dismiss an employee for misconduct, an employer may consider any pre-existing live written warning which is currently held on that individual’s personnel file. If a dismissal occurs and the tribunal is later asked to consider it, the panel may examine that same written warning to determine if it was given in good faith and for a proper reason. In other words, were those earlier disciplinary proceedings that it relates to fair?

Considering appeals

It can also consider the outcome of any internal appeal lodged by the employee against that previous warning when deciding on the overall fairness of a dismissal. For example, if the employee won their appeal, it would be wrong to use it as grounds, or supporting grounds, to dismiss them at a later date. But what if the employee decided not to exercise their right of appeal at the time? Could the tribunal examine their motives for not doing so, and might this, in itself, affect the fairness of their dismissal?

Too much of a risk?

This particular issue was looked at in Davies v Sandwell Metropolitan Borough Council 2011. Ms Davies (D) was employed by MBC as a teacher. She had been given a written warning following an incident of inappropriate behaviour in the classroom. Upon lodging an appeal she was offered a full re-hearing. However, she declined that option on the basis that, if she lost, the disciplinary sanction could be increased, i.e. she would be dismissed.

Further allegations

A short time later, ten other allegations were made against D and further disciplinary action was commenced. In deciding to dismiss her, MBC took the live written warning into account. The matter ended up before the Employment Appeal Tribunal. It was asked to decide if D’s failure to appeal that warning had any bearing on: (1) its validity; and (2) the fairness of her dismissal. It stated that where an employee:

• declines the right to appeal against a written warning (for whatever reason), it shouldn’t affect an employer’s ability to rely on it when making a decision to dismiss. However, it can only safely be relied upon it if it was given in “good faith and for a proper reason”.
• appeals against a written warning, the employer should always delay any dismissal decision until that appeal has been heard; any failure to do so could render it unfair.

Tip 1. This case shows that applying your disciplinary procedures fairly and consistently is important when imposing any type of disciplinary sanction, not just when considering a dismissal. To ensure written warnings are given in good faith, always conduct a thorough investigation, hold a fair disciplinary hearing (at which the employee has the opportunity to put their case), allow the individual to be accompanied and give them the opportunity to appeal your decision.

Tip 2. A failure to provide an appeals process - even if you’re sure it won’t be used - could prove fatal at a later date. So make sure you have written evidence which proves it was offered.