Davies v Sandwell Metropolitan Borough Council (Rev 1)

When deciding whether a dismissal for misconduct is fair, an employer may take an extant final written warning into account. The question under section 98(4) of the Employment Rights Act 1996 is whether the employer reasonably treated the later misconduct, together with the warning, as sufficient reason for dismissal.

An employment tribunal should not ordinarily reopen the merits of the earlier warning or determine whether it was legally valid. It should consider objectively whether a reasonable employer could rely upon it. Relevant factors include whether the warning was issued in good faith, whether there were prima facie grounds for the procedure, and whether the warning was manifestly inappropriate. The last criterion imposes a restrictive threshold, reflecting the need for finality in disciplinary proceedings.

A teacher brought an unfair dismissal claim after the local authority dismissed her for misconduct. The authority accepted that it would not have dismissed her without an earlier final written warning, which remained effective when the subsequent misconduct occurred.

The Employment Tribunal unanimously found the dismissal fair. After earlier appellate and remittal proceedings, it reconsidered the status of the warning and again dismissed the claim. It found that the warning had been issued in good faith, rested on a substantial body of evidence and was not manifestly inappropriate. The Employment Appeal Tribunal rejected the ensuing appeal.

The Court of Appeal considered whether the tribunal had erred by declining to reopen the earlier disciplinary process and by allowing the authority to rely upon the warning.

1. The appeal was dismissed unanimously. The governing provision was section 98(4) of the Employment Rights Act 1996. The question was whether, in the particular circumstances, the employer reasonably treated the later misconduct, together with the final written warning, as sufficient reason for dismissal.

2. Per Mummery LJ, with whom Lewison and Beatson LJJ agreed, a tribunal does not ordinarily reopen the earlier warning to decide whether it should have been issued, whether it was legally valid or whether it was a nullity. Its function is to apply the objective statutory standard and decide whether the warning was a circumstance which a reasonable employer could reasonably take into account.

3. The warning's good faith, the existence of prima facie grounds for employing the warning procedure and whether the warning was manifestly inappropriate are material factors. They assist the assessment under section 98(4); they are not a substitute for the statutory test. The tribunal had made findings on each factor. Those findings entitled it to conclude that the authority properly took the warning into account and that the dismissal was fair.

4. Beatson LJ emphasised that the threshold for going behind an earlier warning is restrictive. The expressions bad faith, oblique or improper motive, and manifestly inappropriate prevent a later tribunal from routinely unpicking the evidence and procedure underlying a historic sanction. He observed that, where no appeal was brought against the warning or an appeal was not pursued, exceptional circumstances would be needed to reopen the earlier process.

5. Lewison LJ added that an employment tribunal reviews whether the employer acted reasonably; it does not conduct a primary fact-finding investigation into the employee's entire history. Tribunals should use their case-management powers to exclude irrelevant material, control irrelevant cross-examination and focus proceedings on the real issues. Appellate courts and tribunals should, wherever legally possible, uphold robust but fair case-management decisions.

6. Lewison and Beatson LJJ also observed that it may be reasonable for an employer to consider that an appeal against an earlier disciplinary sanction was withdrawn or abandoned. That issue was not formally before the court and did not determine the appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2013] EWCA Civ 135 .

2. Employment Appeal Tribunal: On 21 March 2012 the EAT rejected the claimant's appeal from the tribunal's remitted decision.

3. Employment Tribunal: Following a limited remittal concerning the status of the final written warning, the tribunal again dismissed the unfair dismissal claim in a judgment sent to the parties on 4 August 2011.

4. Earlier appellate proceedings: An earlier appeal to the EAT was unsuccessful. A consent order made on appeal to the Court of Appeal then remitted limited grounds to the EAT, which in turn remitted the status of the warning to the tribunal.

5. Employment Tribunal: The tribunal initially dismissed the claim unanimously in a judgment sent to the parties on 23 March 2009. It held that dismissal for conduct was within the range of reasonable responses and that reliance on the final written warning was permissible.