A Bad Warning
Mr Way was a Contracts Manager. He emailed his line manager the text of his “inappropriate” new telephone greeting. A few weeks later Mr Way was given a final written warning for assisting in the recruitment of his ex-partner’s son by completing the application, not disclosing the connection or his involvement and by advising the applicant to submit the form through an agency to cover his tracks.
Then Mr Way sent further “inappropriate” emails to his line manager (am I the only person who’s irritated by this use of that word?). The employer became aware this practice might be common and issued a moratorium:
“…we wish all employees who have sent emails, text images which they think may be of an inappropriate nature to come forward and talk to us. Whilst we cannot make any promises about what action we may or may not take we will be treating it as powerful mitigation when considering any sanction…”
Mr Way broke cover saying:
“…We normally do send pictures of naked women and Christ knows what else…and naked men come to that, so you know we are just covering our bums alright…”
There was an investigation and disciplinary hearing. The panel made a finding of misconduct warranting a final written warning but dismissed Mr Way on the strength of the live final warning.
Mr Way said this was unfair because the warning was tainted by bad faith; the recruitment was approved by a senior manager who initiated the original disciplinary action to cover up his own role then chaired the hearing despite the obvious conflict of interest and having announced the outcome in advance. Further the Managing Director told Mr Way that if he appealed the warning would be escalated to dismissal. For reasons which aren’t clear but which may be rooted in Mr Way not being professionally represented, this argument wasn’t properly aired in the Employment Tribunal which dismissed the claim. The EAT denied the appeal. Although it said there was probably enough to brand the warning with bad faith it seems to have been distracted by the unusual factual enquiry into which it became drawn in consequence of the way in which the case had been put in the lower tribunal.
On Wednesday the Court of Appeal said the EAT went too far. If a warning is given in bad faith it must not be taken into account. But this is far from the end of the story. The case will return to a new Employment Tribunal which must decide for itself if there was bad faith. It will also consider whether Mr Way’s conduct deserved dismissal on it’s own merits regardless of the status of the warning so he’s not out of the woods yet.