Can a final written warning given in bad faith be relied on?

The question of whether a final written warning given in bad faith can be relied on by an employer in a subsequent dismissal for unrelated misconduct was considered by the Court of Appeal in the case of Way v Spectrum Property Care Ltd (22 April 2015).

In cases involving cumulative warnings a tribunal normally limits its enquiries to considering whether the final warning was something that a reasonable employer could reasonably take into account when deciding whether to dismiss the employee for subsequent misconduct. However, a tribunal could re-open the circumstances of a previous warning if:

(a) the warning was issued in bad faith

(b) there were no plausible grounds for issuing a final warning

(c) there is real concern that the warning was manifestly inappropriate.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.


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Andrew Chamberlain

Partner - Head of Employment & Chair of the SDE

I am a Partner, the National Head of the Employment Team and the Chair of the Service Delivery Executive (SDE), which is focused on building better solutions for clients.