Employment Review: May 2015 – Warning given in bad faith could not be relied upon to justify dismissal

In Way v Spectrum Property Care Ltd the Court of Appeal held that a Tribunal, hearing an unfair dismissal claim, must consider whether a previous warning (relied upon as part of the decision to dismiss) was made in bad faith.

Mr Way was employed as a recruitment manager. In 2010 he was given a final written warning for assisting an acquaintance to obtain employment with the company, in contravention of its fair recruitment procedure.

Mr Way subsequently sent a number of e-mails that were found to be inappropriate and in breach of company policy. As his final written warning was still ‘live’, he was dismissed for misconduct following a disciplinary hearing.

Mr Way brought a Tribunal claim for unfair dismissal, alleging among other things that the final written warning had been given in bad faith. He alleged that the manager who was in charge of the disciplinary proceedings regarding the erroneous appointment covered up his own involvement in the recruitment process. The Tribunal Judge, taking the view that the background to the final written warning was ‘irrelevant satellite litigation’, refused to hear evidence on this. He went on to find that Mr Way’s dismissal was fair.

The case came before the Court of Appeal and it was decided that a warning given in bad faith should not, in circumstances like these, be taken into account in deciding whether there was sufficient reason for dismissing an employee.

The case was remitted to a differently constituted Tribunal to decide whether or not Mr Way had been unfairly dismissed.

Comment

It is difficult when an employee, faced with further action, tries to re-open a previous warning. It can be time-consuming to try to review a process which has been concluded and sometimes the complaints are difficult to investigate. This case does not mean that employers have to reconsider all criticised previous warnings when relying upon them, particularly if all the employee is saying is that the sanction was harsh or wrong.

However, where the employee alleges some impropriety about the previous warning or alleges that it was clearly the case it shouldn’t have been imposed, the person considering the matter or hearing the appeal should enquire into what exactly is being alleged. In many cases they will want to undertake some investigation or clarification of the previous warning. Whilst it is unlikely that they will decide that a historic warning was given in bad faith or was manifestly inappropriate, it will provide an opportunity to look into what has been raised and establish what (if any) risk exists should the employee claim unfair dismissal.

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