The appellant worked in the Wimbledon store. She had received a final written warning prior to her dismissal for an issue involving another member of staff but had failed to appeal in time under the employer's procedures and they declined to hear the appeal at that time. She was later dismissed for an unrelated matter where her sister-in-law was seeking to reclaim VAT on items purchased with the appellant's store discount card.

This incident arose at a time when the employer was investigating a second matter of an argument with a manager during which she raised her voice and displayed aggressive behaviour. The tribunal declined to look at the basis for the original final written warning and the appellant's appeal was partly based on that.

The Court of Appeal concluded that case law has determined that a tribunal should look at previous warnings, where relevant, to ascertain "...that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it."

In this case it was not necessary for the Court of Appeal to review the authorities as to the extent to which the court or tribunal should investigate the merits of the first written warning because the original tribunal had found that the discount card offence of itself amounted to gross misconduct. Besides, the appellant had signed notes admitting to the store card offence, "...and gave rise to reasonable grounds for believing that the contents of those notes was true." http://bit.ly/MDb3x4

Practical lessons from this decision

Keeping good records to highlight knowledge at the time of discipline is essential in protecting the employer’s position.