For many years the fact that an employee had a final written warning which was live and then committed a further act of misconduct meant that dismissal was fair if a proper procedure was followed. There were rare circumstances where a Tribunal would look further at the position. I recall many a case when acting for an employer that I had the case dismissed at a Pre-hearing review for no reasonable prospects on those same facts.
Following the recent Court of Appeal decision in Davies v Sandwell Metropolitan Borough the position is less straight forward. This case found that an employer is entitled to rely on a final written warning in considering dismissal provided it was issued in good faith, there was at least a prima facie case for imposing the final written warning and it was not manifestly inappropriate to impose that final written warning.
Where there is a real concern in a case that the final written warning was manisfestly inappropriate the Tribunal may scrutinise the circumstances in which the final written warning was given. Equally this comes too late for some employee clients.
A second Court of Appeal case of Christou v London Borough of Haringey (also this year concerning the Baby P case) found that an employer can discipline for a second occasion the same incident/conduct particularly where new evidence has come to light.
Perhaps the law on unfair dismissal concerning warnings is not as straight forward as it once was?