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


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