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Final Warnings Must Be Given in Good Faith to Have Any Effect

In a guideline decision, the Court of Appeal has ruled that final warnings given in bad faith are not to be taken into account when assessing whether there was sufficient reason for dismissing an employee.

A contracts manager had been given a final warning in respect of alleged breaches of his employer’s recruitment policy. He was said to have assisted his ex-partner’s son to obtain a position with the company. The warning was still on his file when he was later found to have used his work computer to send inappropriate emails.

He was dismissed for gross misconduct and, in rejecting his unfair dismissal claim, an employment tribunal (ET) found that the disciplinary procedure followed by the company was fair and reasonable and that dismissal was within the band of reasonable responses. That ruling was subsequently upheld by the Employment Appeal Tribunal.

In allowing his appeal, however, the Court of Appeal found that the ET had wrongly failed to consider the man’s arguments that the final warning had been given in bad faith. He claimed that the disciplinary proceedings had been initiated to cover up a more senior employee’s part in the matter and that he was told that it would ‘pay him to forget about the whole thing and move on’.

The Court ruled that a warning given in bad faith could not be relied upon for the purpose of determining whether there was a good enough reason to justify the man’s dismissal. His case was therefore sent back to a freshly constituted ET for reconsideration.