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Defective final written warning can make subsequent dismissal unfair

Posted on 14th March 2011
Case law

A dismissal may be unfair when the employer relies on a defective final written warning even where the employee did not appeal the warning.

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Miss Davies's failure to pursue the appeal did not prevent her from relying on the procedural failure of her employer when issuing the final warning to render the dismissal potentially unfair

Davies v Sandwell Metropolitan Borough Council UKEAT/0416/10


Miss Davies had previously been given a verbal and final written warning. In relation to the final written warning, Miss Davies appealed but before it was heard she withdrew her appeal fearing that the Council may dismiss her instead. During the appeal process Miss Davies wanted to submit documentary evidence to show that the allegations against her were not made out. The Council, however, refused to consider this evidence because it had been put in out of time. Therefore the final written warning remained on Miss Davies employment record.

Two years later, five new disciplinary issues of misconduct arose and these were upheld. The finding of misconduct did not itself justify dismissal but the Council dismissed Miss Davies relying on the misconduct finding and the existing live final written warning.

Miss Davies brought a claim for unfair dismissal. She argued that the final written warning was defective and should not have been taken into account when considering if dismissal fell inside the band of reasonable responses. Miss Davies argued this was because the final written warning had been imposed unfairly given the Council had not adjourned the disciplinary hearing to enable her to present relevant evidence.

At the employment tribunal hearing Miss Davies lost her claim mainly on the basis that she had not proceeded with her appeal against the final written warning and therefore the Council was entitled to rely upon it when considering the outcome of the latest disciplinary finding of misconduct.


At first he EAT refused to hear the appeal against the employment tribunal decision. The Court of Appeal, however, gave permission for the appeal to proceed deciding it was arguable that when a procedural problem is identified with how a final written warning was imposed, it was for the employer and not the employee to correct any defect by taking further corrective action. The Court of Appeal held:
"If the warning was in employment terms a nullity, failure to appeal against it could not improve it. The matter might be different if the employee's action in not appealing involved or implied an admission that the allegations made against her were true, but . . . that was not the case."
The EAT, taking into account the decision from the Court of Appeal, held that Miss Davies's failure to pursue the appeal did not prevent her from relying on the procedural failure of her employer when issuing the final warning to render the dismissal potentially unfair. This was because Miss Davies's reason for not appealing did not involve any explicit or implied admission that the allegations made against her were true.
Whether the dismissal was in fact unfair was not decided but the EAT has been referred the case back to the employment tribunal to reconsider this key issue.

In practice

This decision is surprising. For years employees have been advised to appeal any disciplinary (or grievance) decision if they object to it lest that they are then stuck with the decision. The above case goes against the objective of ensuring internal disciplinary procedures are operated in such away so that there is a degree of finality. Allowing an employee to challenge the validity of a previous warning is not conducive to this objective.
What this case highlights is the continuing importance of employers making sure they follow their disciplinary and grievance procedures correctly and fairly. If a previous warning is shown to be defective, an employer's reliance upon it when dismissing will most likely mean that the dismissal fell outside of the band of reasonable responses. The employee's failure to appeal the defective warning will let the employer argue (in some cases) that the warning was nevertheless valid.
The outcome of Miss Davies's appeal would have been different if her reason for not appealing was in any way linked to the fact she was guilty of the allegations made against her.

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