A final written warning issued during a mental health crisis is not automatically fair.
“Final written warningA formal sanction one step below dismissal, usually issued for a serious matter or where a written warning is already live. A further disciplinary matter during the live period will typically result i... and subsequent dismissal found unfair”
If you were disciplined or dismissed following an absence connected to a mental health crisis, your employer may have been required to consider whether a health condition was relevant before taking action, even if you had never been formally diagnosed.
- Under section 15 of the Equality Act, unfavourable treatment connected to a disability can be unlawful even where your employer did not know you were disabled, if the signs were visible in their own records.
- A previous absence coded as stress, a GP fit note, or a recently adjusted working arrangement are the kinds of things a tribunal will ask whether your employer considered before proceeding with a disciplinary.
- If you believe a health condition was not properly taken into account before a disciplinary decision was made, take advice. The fact that a process was followed does not mean it was a fair one.
The situation
A duty manager at a pub had a breakdown in July 2023 and left work without making contact. The company treated the absence as AWOL and wrote to him while he was still in crisis, inviting him to a disciplinary hearingA formal meeting at which your employer sets out the allegation against you and gives you the opportunity to respond before any decision is made. You have the right to be accompanied by a colleague or... for gross misconductBehaviour serious enough that your employer is entitled to dismiss you immediately without notice. Common examples include theft, violence, or serious dishonesty, but what counts depends on your emplo.... A final written warningA formal sanction issued after a disciplinary process, recorded on your file for a set period. It is not a dismissal, but it can be used as a prior warning if a further disciplinary matter arises duri... was issued. His appeal failed.
What was already in the company's own records at that point: a previous absence documented as stress and anxiety that was possibly undiagnosed, a GP fit noteA certificate issued by a GP or other clinician confirming that you are not fit for work, or that you may be fit for work with certain adjustments. Your employer can use it as medical evidence in a ca... recommending a phased return, and a part-time arrangement agreed just weeks before he disappeared.
What the tribunal found
The warning was unlawful under section 15 of the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a..., which prohibits unfavourable treatment arising from something connected to a disability. The tribunal's finding was not that the absence was acceptable, or that the company was wrong to raise the matter. It was that the company already had the information it needed to ask a different question, and it did not ask it. A separate harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment... finding was also made against the line manager for comments made in September 2023.
Dunn v J D Wetherspoon plc. Case 6000357/2024. Sheffield Employment Tribunal. May 2025.