In Simmonds v Milford Club, the Employment Appeal Tribunal (EAT) ruled that where there is a real concern that an earlier final written warning that was material in the decision to dismiss an employee may have been manifestly inappropriate, it will be necessary for the Employment Tribunal (ET) to examine the evidence and decide, on the relevant facts, whether or not this was the case.
In a further case on the same topic (Davies v Sandwell Metropolitan Borough Council), the Court of Appeal has confirmed that it is only in exceptional cases, where the earlier final warning was issued in bad faith or was manifestly inappropriate, that the ET should go behind the sanction to conclude that it was unreasonable for the employer to later rely on it to justify dismissal of an employee.
The Court confirmed that, when deciding whether or not to dismiss an employee, it is legitimate for an employer to rely on a final written warning provided that:
- it was issued in good faith;
- there were at least prima facie grounds for imposing it; and
- it was not manifestly inappropriate to issue it.
These are relevant factors for the ET to take into account when assessing the reasonableness of the decision to dismiss an employee but it is not the function of the ET to re-examine the issuing of all final warnings. Its function is 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 when deciding to dismiss the employee for subsequent misconduct.