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Correct Approach to Previous Warnings in Unfair Dismissal Cases

Where an employee has been dismissed for misconduct, the existence of previous warnings is relevant when considering whether or not the dismissal is fair, where the employer seeks to rely on an existing live warning in making the decision to dismiss. A tribunal is only permitted to take into account the validity of the warning where the warning was itself “manifestly inappropriate” or given for an “oblique motive”.

The EAT has recently given further guidance on how warnings should be dealt with when assessing the fairness of a decision to dismiss:

  • The tribunal should take into account the fact of the warning.
  • The tribunal should take into account any proceedings which may affect the validity of that warning (for example an internal appeal) and give those as much weight as it seems appropriate.
  • The tribunal should not go behind a warning and hold that it should not have been issued or that some lesser sanction should have been applied.
  • The tribunal should not generally go behind a warning to take into account the factual circumstances giving rise to the warning.
  • The tribunal will not be wrong in taking into account an employer’s treatment of similar matters relating to other employees.
  • It is always implicit that further misconduct of whatever nature following a final written warning will be met with dismissal, save where the terms of the contract state otherwise or in exceptional circumstances. (In contrast, where the previous warning is not a final written one, in our view, it is always going to be unfair to rely on it in deciding to dismiss following a next instance of misconduct that is short of gross misconduct.)

Employers should be mindful of this guidance when seeking to rely on existing live warnings where it is proposed that the employee be dismissed.

Disciplinary procedures should specify clearly how long a warning will be live for, which should be a reasonable period of time (for example 6 or 12 months, depending on the type of warning). Further, the life span of the warning should be confirmed at the time it is given. Reliance on spent warnings will be unfair, unless the employer has decided that the misconduct which is the subject of the disciplinary investigation warrants dismissal and, in considering whether any lesser sanction would be appropriate, considers any spent warnings that employee may have.