Warnings issued in bad faith

Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it’s alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Mr Way had alleged bad faith on the part of the line manager who had issued the warning. The employment tribunal didn’t hear evidence about this at his unfair dismissal hearing; the dismissal was fair, the tribunal said. The Employment Appeal Tribunal held that, while Mr Way had done enough to raise a case of bad faith and the tribunal should have looked into this, it made no difference to the outcome.

But the Court of Appeal has sent the case back to a new tribunal. It will decide if the earlier warning was issued in good faith. If it wasn’t, it would have been unreasonable to rely on it when deciding if there was sufficient reason to dismiss Mr Way. And the fairness of the dismissal hinges on that.

So be clear about the significance of employees’ submissions on the motives behind warnings. Take any mention of bad faith seriously and be careful to not let it undermine the reasonableness of your disciplinary decisions. Ultimately, you have to disregard any past warning if, after investigation, you agree it was issued in bad faith.

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