Way v Spectrum Property Care Ltd (Unfair Dismissal)

An employer may ordinarily rely on a live final written warning when deciding whether to dismiss for later misconduct. A tribunal may investigate the earlier warning where there is a properly raised case that it was issued in bad faith, without grounds, or in manifestly inappropriate circumstances. A bare assertion is insufficient, and the availability and non-use of an appeal are relevant.

The factual circumstances of an earlier warning may affect the fairness of a later dismissal. Differences between the earlier and later misconduct are relevant but need not affect the outcome where the warning required future compliance with company policies.

The claimant was dismissed for misconduct involving inappropriate emails while a final written warning for earlier breaches of company policies remained live. The warning required him to familiarise himself with, and comply with, the employer's policies.

The Employment Tribunal at Southampton dismissed his unfair dismissal claim. Although the parties had identified the employer's entitlement to rely on the warning as an issue, the Employment Judge excluded evidence challenging the good faith of the manager who imposed it.

The claimant appealed to the Employment Appeal Tribunal. The central issues were whether excluding that evidence was erroneous and, if so, whether the error could have affected the finding that dismissal was fair.

1. Appeal dismissed. The Employment Judge erred in refusing to hear evidence concerning the background to the final written warning. The claimant had raised a sufficient, though borderline, case that the warning might have been issued in bad faith. Since the parties had made reliance on the warning an agreed issue, the Tribunal should have heard the evidence and investigated that allegation.

2. Under section 98(4) of the Employment Rights Act, the question remains whether the employer acted reasonably in treating the reason for dismissal as sufficient. An employer may rely on an earlier warning unless it was issued in bad faith, without grounds, or in circumstances that were manifestly inappropriate. The employee's failure to pursue an available appeal is a relevant consideration.

3. The error did not affect the result. Proceeding on the assumption that the claimant could establish the issuing manager's bad faith, the employer was still entitled to take account of the warning. It was valid on its face, unappealed, and required compliance with company policies. At the dismissal hearing the claimant acknowledged it and said he understood it. On the subsequent dismissal appeal, a different manager investigated and rejected the claimant's challenge to the warning; the claimant made no complaint about that appeal. The manager alleged to have acted in bad faith played no part in the later disciplinary process or appeal.

4. The Tribunal was also entitled to find that the different nature of the earlier and later misconduct made no difference on these facts. Such differences can be relevant to overall fairness, but the warning's express requirement of future compliance with policies supported the conclusion that dismissal fell within the band of reasonable responses.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's dismissal of the unfair dismissal claim stood.
• Employment Tribunal, Southampton: Employment Judge Kolanko dismissed the claimant's unfair dismissal claim in a decision sent on 17 September 2012.