A Court has held that an employer may not be able to rely on a live final warning to dismiss an employee, even though the employee did not appeal against the warning at the time.

The case of Davies v Sandwell Metropolitan Borough Council goes back to a final warning issued in 2004. The warning concerned Miss Davies’ conduct as a teacher. At the time, Miss Davies said that her pupil’s workbooks and classroom register would disprove the allegation, but the Council refused to consider them. She started an appeal against the final warning, but dropped it, partly on the advice of her union.

When Miss Davies was dismissed years later, and the Council relied on the warning in doing so, she argued that this amounted to unfair dismissal, because the initial warning was itself not sound. (An employee needs to establish a final warning was manifestly inappropriate or for an oblique motive for it to be ineffective).

The Appeal Tribunal said that the fact that Miss Davies had not appealed the final warning should not stop her being able to challenge it (and therefore the subsequent dismissal) now. In this case, there was a real question mark over the Council’s decision not to allow her to rely on the workbooks and register all those years ago.

As a result of this decision, more than ever, employers will have to make sure their final warnings are sound, and that a proper process has been followed.

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Updates: For employers: Dismissing staff | Unfair and constructive dismissal | For employees: Unfair dismissal |

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