The EAT has held, in the case of Davies v Sandwell MBC, that where the employee had not appealed against a final written warning, it did not make the warning automatically valid, but the employment tribunal could take into account the validity of that warning in deciding whether a subsequent dismissal was fair.

Miss Davies, a teacher, was given a final written warning in 2005 in relation to complaints about her conduct.  This final written warning had been issued following a disciplinary hearing at which Miss Davies was not allowed to present relevant evidence because she had not given the disciplinary chair sufficient notice.  Following advice from her union representative Miss Davies withdrew her appeal against the warning, being concerned that the Council might increase the sanction on appeal.  In 2006 there were further allegations of misconduct and the Council dismissed Miss Davies, taking the view that the current misconduct, when taken together with the previous final written warning, warranted dismissal.

The employment tribunal held that the Council had acted fairly in dismissing Miss Davies. Although there were procedural defects in the issuing of the 2005 warning, the fact Miss Davies had not appealed against the warning meant that its validity could not be questioned.

The EAT upheld Miss Davies' appeal.  It held that it was not appropriate to say that because there was no appeal, the final written warning was valid - the correct question was whether the final written warning was issued in good faith and whether there were prima facie grounds for it.  It remitted the case to the employment tribunal to reconsider the question of fairness or unfairness of the dismissal, taking into account the procedural defects of the final written warning.

Impact on employers

  • This case is an important case for HR professionals and is a good example of how disciplinary procedures, even where they have apparently been properly followed, can go wrong.  If a final written warning is subsequently found by an employment tribunal to be invalid, it is highly likely that any decision to dismiss that takes that warning into account will be unfair.
  • Employers are reminded that a final written warning should only be taken into account in a subsequent decision to dismiss if it was issued in good faith following a reasonable investigation and a fair procedure. 
  • Procedures should ensure that the seriousness of a final written warning is recognised and only given as a sanction following a proper process and thorough investigation.  Such precautions should ensure that it is safe to rely on a previous final written warning.
  • However, if a final written warning was not issued in good faith or there were not prima facie grounds for it, or the process leading to it was flawed, the fact the employee failed to appeal will not save the employer from a finding of unfair dismissal.

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