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Final written warnings: you have been warned

Can a Tribunal consider the validity of a Final Written Warning when assessing the fairness of a dismissal?

A recent court case has again raised a question which is important for employers to consider when carrying out disciplinary procedures with an employee: can the validity of an earlier final written warning be considered when assessing the fairness of a dismissal?

It is fair to say that most employers are mindful of the need to follow a correct and fair procedure when it comes to dismissing an employee, but a recent case has emphasised the need for this thorough approach to also be applied to disciplinary proceedings where a final written warning is a more likely outcome. Does it raise the question, how sure are you that your supervisors and managers further down the chain of command are aware of the need to follow the correct procedures in all aspects of disciplinary procedures?

A recent case has highlighted the need for fairness, not just at the dismissal stage, but throughout earlier stages of a disciplinary process. It is essential that a final written warning is issued fairly if you intend to rely on it in the future to justify dismissal of an employee.

What did the Employment Tribunal decide?

In Adegobola v Marks and Spencer Plc, the Tribunal found that it had no jurisdiction to consider whether a final written warning issued to an employee prior to their dismissal was unfair. The Tribunal argued that any appeal hearing and later investigation by the employer would have cured any defect in earlier disciplinary procedures. Therefore, the Tribunal dismissed employee’s claims for unfair dismissal.

The employee subsequently appealed this ruling to the Employment Appeals Tribunal (EAT), which was again dismissed. The employee then further appealed to the Court of Appeal.

Why did the Court of Appeal rule differently?

The Court of Appeal held that the original Tribunal was wrong and that it is appropriate for a Tribunal to consider earlier final written warnings when deciding the fairness of a dismissal. The moral of this case is that employers should follow a fair and reasonable procedure at all stages of the disciplinary process. If not, the risk is that you could later face a claim for unfair dismissal.

If you are unsure about anything in this article, please contact our Employment & HR Team.

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