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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 01 MAY 2015

Warning given in bad faith couldn't be relied upon in a decision to dismiss employee

Warning given in bad faith couldn't be relied upon in a decision to dismiss employee
Helen Hughes, Solicitor
Veale Wasbrough Vizards

The Court of Appeal (CA) has found that a warning given in bad faith could not be relied upon by an employer when deciding whether to dismiss an employee in the case of Way v Spectrum Property Care Ltd.

Mr Way was employed by Spectrum Property Care Ltd (SPC) as a recruitment manager and was given a final written warning as a result of helping an acquaintance secure a job with the firm, which was in contravention to SPC's fair recruitment procedure. Mr Way contended that this final warning had been given in bad faith to cover up his manager's involvement in the recruitment process. Mr Way subsequently breached company policy by sending a number of inappropriate emails and given that the final written warning was still 'live' Mr Way was dismissed for misconduct.

Mr Way brought a claim for unfair dismissal and during the hearing at the employment tribunal (ET) the judge refused to hear evidence on whether the written warning was given in bad faith or not, and viewed the background of the warning as 'irrelevant satellite litigation.' The ET determined that Mr Way's dismissal was fair.

On appeal, the Employment Appeal Tribunal (EAT) found that the ET judge was wrong to exclude evidence as to whether the warning was given in bad faith or not, but found that even if bad faith was found it would not have made a difference to the finding that the dismissal was fair.

On a further appeal to the CA, it was found that in the given circumstances, a warning given in bad faith could not be used to support a decision for dismissal. Christopher Clake LJ said: "An employer would not be acting reasonably in taking into account such a warning when deciding whether the employee’s conduct was sufficient reason for dismissing him; and it would not be in accordance with equity or the substantial merits of the case to do so."

The CA commented that the ET's attempts to limit the investigation of the case to what was strictly relevant and the EAT seeking to avoid remitting the case had led to the taking of 'inappropriate shortcuts', which had ultimately led to a lengthening of the process. The CA remitted to the case to a differently constituted ET to determine whether or not Mr Way was unfairly dismissed.

Best practice

This case is a reminder that employers should take a cautious approach in seeking to rely on any previous warnings, if there are any questions surrounding the validity of those warnings, when proceeding with the disciplinary process or making any decisions to dismiss.

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