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Can Tribunals revisit previous warnings in deciding whether a dismissal is fair?

In a recent decision the Court of Appeal has been called upon to consider the extent to which Tribunals are entitled to analyse the rationale behind previous warnings issued to employees, where these warnings have been relied upon to dismiss.


Miss Davies was issued with a final written warning for misconduct in 2005 which was to remain on her file for 24 months. In 2006 a further act of misconduct was alleged. Her employer, Sandwell Metropolitan Council, took the warning into account and decided to dismiss her. Miss Davies pursued a claim for unfair dismissal. One of the grounds for her claim was that the final written warning was not legitimate and therefore should not have been relied upon to dismiss her.


The case reached the Court of Appeal where the Court was called upon to clarify the extent to which a Tribunal is permitted to analyse the circumstances surrounding earlier warnings, where these warnings are subsequently relied upon to dismiss an employee.

The Court of Appeal concluded that it will be legitimate for an employer to rely on a warning where:

  • the warning is issued in good faith;

  • there are, on the face of it, at least some grounds for imposing the sanction; and

  • the warning is not manifestly inappropriate.

The practical effect of this is that Tribunals should not re-open previous warnings and rule on whether that warning should have been issued in the first place unless the warning fails to meet one of the grounds set out above.

For a dismissal to be fair it is sufficient that there is a live warning on the employee’s file and it was reasonable in all the circumstances for the employer to rely on this to dismiss.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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