Alex Ustych represents successful appellant in Court of Appeal case concerning the validity of final written warnings and remission of cases to the Tribunal

Alex Ustych represented Charles Alan Way, the appellant, in Way v. Spectrum Property Care Limited [2015] EWCA Civ 381. Mr. Way was dismissed by Spectrum following an investigation into widespread sending of inappropriate e-mails by its staff. The e-mails sent by Mr. Way would not have warranted his dismissal but for the fact that he had received a final written warning for an unrelated matter in the preceding 12 months (which he did not appeal). Mr. Way alleged that the final written warning was issued in bad faith (and thus could not be relied upon) and sought to advance this argument at the Employment Tribunal. The Employment Judge refused to hear evidence or submissions challenging the final written warning and Mr. Way’s unfair dismissal claim failed.

The Employment Appeal Tribunal (‘EAT’) found that the Tribunal was wrong in law to refuse to hear evidence of bad faith, but refused to remit the case to the Tribunal, finding instead that the Tribunal “reached the right conclusion” notwithstanding the error of law.

The Court of Appeal (Lady Justice Hallett, Lord Justice Patten and Lord Justice Christopher Clarke) allowed Mr. Way’s appeal. The COA found that the EAT judgment “has a degree of illogicality” in that, having assumed for purposes of the appeal that ‘bad faith’ tainted the warning, it nonetheless found that the warning could be relied on in the particular circumstances of the case.

The COA also allowed the appeal on the ground that the EAT should have remitted the case to the Tribunal as there was an “open question” as to its outcome. The EAT strayed beyond the robust application of the principles in Jafri v Lincoln College [2014] ICR 920 (on the test for remission) and instead itself reached the decision that was for the Tribunal to make.

Christopher Clarke LJ generally warned (in the ‘Postscript’ at par. 58) against the practice of Employment Tribunals and the EAT taking “inappropriate shortcuts” when, respectively, trying to limit the scope of investigation to what is strictly relevant and when trying to avoid the remission of cases.

The full text of the judgment can be found here:

Alex Ustych regularly represents both employers and employees in employment law proceedings and has significant experience of both the EAT and the COA.