Final warning

Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, [2013] All ER (D) 310 (Feb); NLJ 8 March

The guiding principle in determining whether a dismissal was fair or unfair in cases where there had been a prior final warning did not originate in authorities, which were but instances of the application of s98(4) of the Employment Rights Act 1996 to particular sets of facts. The broad test laid down by s98(4) of the Act was whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstances of the final written warning, as sufficient to dismiss the employee. In answering that question, it was not the function of the tribunal to re-open the final warning and rule on an issue raised by the employee as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a nullity. The function of the tribunal was to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance which a reasonable employer could reasonably take into account in the decision to dismiss the employee for subsequent misconduct. It was relevant for the tribunal to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure, and whether it was manifestly inappropriate to issue the warning. They were material factors in assessing the reasonableness of the decision to dismiss by reference to, inter alia, the circumstances of the final warning.