Dismissal - The Lack of an Appeal

In Davies v Sandwell Metropolitan Borough Council, the EAT ruled that the legitimacy of a final warning may be reassessed by a Tribunal, even when the employee has chosen not to appeal the warning.Miss Davies was employed by Sandwell Metropolitan Borough Council as a High School teacher. After a verbal warning in 2004, Miss Davies was given a final written warning in 2005 for misconduct during a lesson.  Initially, Miss Davies was eager to appeal the final written warning and presented some evidence to the Council in support of this.  However, her union representative advised against appealing and Miss Davies decided to drop her appeal.  The warnings remained on her record. In 2006 allegations were once again made against Miss Davies, and after disciplinary proceedings she was dismissed without notice.  The Council relied on the final written warning in making their decision.  Miss Davies brought a claim of unfair dismissal to the Tribunal and sort to argue that the final written warning was illegitimate and adduce evidence to that effect. The EAT considered that even though the appeal was not progressed by Miss Davies, the validity of the warning could be taken into account when determining whether or not the subsequent dismissal was fair or not.  It is possible the case will be appealed to the Court of Appeal. This case demonstrates the importance of employers carefully considering their disciplinary actions at every step of the procedure.   The procedure must be applied fairly and reasonably.   Here the Council was in receipt of evidence which suggested that the final written warning was not appropriate, but they did not act on it.  The fact that an employee does not appeal does not necessarily mean that the employee accepts the validity of the sanction and indeed the Tribunal may assess the validity of a warning when determining whether dismissal is a fair sanction.   The employer cannot hide behind the lack of an appeal, so it is important to get these matters right.