Davies v Sandwell Metropolitan Borough Council (UKEAT/0416/10)
Miss Davies was employed by Sandwell MBC as a teacher. In 2005, she was given a final warning following an incident of inappropriate behaviour in the classroom. At the disciplinary hearing Miss Davies produced evidence that undermined the allegations against her and showed that some of the pupils who had provided statements against her were in fact absent from school on the day of the incident. However, the Council’s Disciplinary Panel refused to take this evidence into account, on the grounds that it had been produced too late (the Council required all evidence to be produced seven days before the hearing).
Miss Davies appealed the decision and eventually the Council agreed to carry out an appeal by way of a complete rehearing. However, on the advice of her trade union Miss Davies decided to drop the appeal because it was possible that the Council could increase the sanction from a final warning to dismissal.
In 2006, 10 further allegations were made against Miss Davies. The Council’s Disciplinary Panel upheld five of the 10 allegations and decided to dismiss Miss Davies on the grounds of these allegations coupled with the prior final warning. Miss Davies lodged a claim for unfair dismissal with the Tribunal.
The Tribunal’s decision
The Tribunal upheld the Council’s decision to dismiss Miss Davies on the basis that she had been offered the right to appeal by way of complete re-hearing. The Tribunal decided that, as the final warning had not been appealed, its validity could not be questioned. Therefore, the Council was entitled to rely on the previous warning, in combination with the later findings of misconduct, in deciding to dismiss Miss Davies.
Miss Davies appealed the Tribunal’s decision. One of her grounds of appeal was that the Tribunal should have considered the validity of the final warning when looking at whether the dismissal was fair, in light of the Council having ignored relevant evidence when issuing the warning.
The EAT’s decision
The EAT reviewed the current case law and confirmed that, where a final warning was issued for an “oblique motive or if it was manifestly inappropriate”, the absence of an appeal could not have the effect of making the final warning valid. In those circumstances, a Tribunal is at liberty to consider the effect of the invalidity of the final warning on the decision to dismiss. The EAT found that, in this case, the Tribunal had concluded that the final warning was manifestly inappropriate and therefore should have looked at the effect of its invalidity on the dismissal. The EAT further commented that, on the facts of this case, there was an even greater need to look behind the final warning where the reason for the lack of appeal did “not involve any explicit or implied admission that the allegations made against her were true”.
The decision was referred back to the original Tribunal to decide whether the final warning was fair in light of the procedural defects, regardless of the fact that there was no appeal from Miss Davies, and in light of that finding to decide whether the decision to dismiss was unfair.
Comment
This case has practical implications for employers who are faced with a situation where a decision to dismiss is affected by a prior warning an employee has received. If the warning is retrospectively found to be invalid, it could take the later dismissal outside of the band of reasonable responses and render that dismissal unfair.
It is arguable that there is an even greater danger where an employee has not appealed a final warning, as there will have been no review of the validity of the decision to issue the final warning. The point for employers is, therefore, to ensure that their disciplinary procedures are applied fairly and consistently at all disciplinary stages. Although issuing a final warning may not pose any immediate risk to an employer, it is essential that care is taken when deciding on the level of sanction to be issued in each case.
Finally, although it is unrealistic to review the procedure behind every warning an employee has received when deciding whether to dismiss, where employers are aware that there is an increased risk of a claim and where potential losses at Tribunal could be significant, it will be worth taking the time to ensure that the decision to impose a previous warning was correct.