By Richard Case
Yes and no say the Court of Appeal in Davies v Sandwell MBC [2013] EWCA Civ 135 [2013] IRLR 374:
Although the procedural history of the case was tortuous it arrived in the Court of Appeal on a narrow point. The Claimant had received a final written warning for conduct. During the currency of the warning she committed a further act of misconduct and was dismissed. At the time of the dismissal she had appealed against the final written warning but this had been adjourned and was never restored.
The Employment Tribunal (ET) decided she had not been unfairly dismissed. The Employment Appeal Tribunal (EAT) rejected the appeal. The Court of Appeal approved the EAT in Stein v Associated Dairies [1982] IRLR 444 and re-affirmed Tower Hamlets v Anthony [1989] IRLR 394 setting out the following guidance:
•    The guiding principle was whether the dismissal was fair having regard to section 98(4) of the Employment Rights Act 1996 (i.e. whether the employer behaved reasonably having regard to the circumstances and in accordance with equity and the substantial merits of the case).
•    It is not the function of the ET to re-open a final warning but rather to apply the statutory test.
•    It is for the ET to consider whether the final warning was issued in good faith, on prima facie grounds and whether it was manifestly inappropriate to issue the warning. These factors are relevant to the reasonableness of the decision to dismiss (i.e. section 98(4)). The ET should go no further in unpicking the earlier decision to issue a final written warning.
There is a slightly more nuanced answer to the question of an open appeal. In this case the ET concluded that it was reasonable to take into account both the fact of the final written warning and that although there was an appeal against it, this was not pursued to a conclusion. The EAT held that this was an error of law.
On this point Lewison LJ stated that he did not endorse the view that it is always unreasonable to take into account the fact that an appeal against a previous disciplinary sanction has been withdrawn or abandoned.
Beatson LJ went further in stating the need for finality and said that where there has been no appeal or an appeal has been launched but not pursued there would need to be exceptional circumstances for going behind the earlier process and re-opening it. He said it may be reasonable to take into account the withdrawal or abandonment of an appeal in later disciplinary proceedings.
What is clear is that the question will be judged having regard to the statutory test in section 98(4). If there is an appeal against a final written warning pending it might be quite unreasonable to take the final written warning into account in deciding to dismiss especially if there was no pressing need to reach a decision without awaiting the outcome of the appeal.
If there has been no appeal the point does not arise but if the appeal has been started but then abandoned or not pursued there may be an obligation to consider why. If it was because the employee wanted to move on with his life but maintained his or her assertion the final warning was not justified then it might be unreasonable to refuse to consider the representations at the disciplinary hearing that results in dismissal.
Please click here to view the profile for Richard Case