Warnings 





The Acas Code of Practice (see page 347) says that formal disciplinary procedures should specify a series of warnings leading to dismissal. There is no statutory requirement for a verbal warning to precede a written warning (although disciplinary procedures that stipulate a verbal warning must be followed). Any dismissal following a series of warnings must meet the minimum standards set by the Acas Code as well as by any more rigorous contractual disciplinary procedure.
Acas recommends that most issues are best approached informally before using a formal procedure.



To comply with the Acas Code, a disciplinary procedure should include at least a First Written Warning, followed by a Final Written Warning, with the possibility of moving straight to a Final Warning where misconduct is sufficiently serious. Any conduct that could justify moving straight to a Final Warning should be clearly identified in the disciplinary rules.
Except for the most serious cases, it is likely to be unfair to dismiss without at least one formal warning clearly spelling out the risk of dismissal if behaviour does not change.
There should be a right of appeal against the warning at each stage of the procedure.
An employer should act consistently, and should take into account how it treats other employees in a similar situation.





Any further misconduct during the life of a Final Warning is likely to result in a fair dismissal (Wincanton v Stone [2012] UKEAT 0011/12/1110). There is no rule that conduct must be the same kind or the same level of seriousness as that which produced the original warning.





Whether or not a dismissal triggered by a live Final Warning is fair depends on the whole context, including the relevance of the earlier warning to the final decision to dismiss (Bandara v British Broadcasting Corporation [2016] UKEAT/0335/15/JOJ).




A tribunal will not usually reopen the facts that led to a Final Warning and decide whether it should have been given in the first place (Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139, Beattie v Condorrat War Memorial and Social Club [2019] UKEATS/0019/17/JW). The only exception is where there is evidence of bad faith by the employer or where the Final Warning was clearly and obviously unreasonable.
A warning will be clearly and obviously unreasonable if there is something about it that “once pointed out, shows that it plainly ought not to have been imposed” (Bandara v British Broadcasting Corporation [2016] UKEAT/0335/15/JOJ).




It is very difficult to successfully challenge a dismissal that is triggered by a live Final Warning. For a rare example of a successful claim, see Simmonds v Milford Club [2012] UKEAT/0323/12/0612.




A dismissal based on a Final Warning given in bad faith will be unfair (Way v Spectrum Property Care Ltd [2015] EWCA Civ 381).




Reasonable adjustments must be made to all stages and penalties of a disciplinary procedure to accommodate disability (Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265), see Chapter 7, page 243.




The Acas guidance says that except in agreed special circumstances, warnings should be disregarded for disciplinary purposes after a fixed period of satisfactory performance or conduct. This is often referred to as becoming “lapsed” or “spent”. The period should be agreed when the procedure is first drawn up and set out clearly. The Acas guidance suggests up to six months for a First Written Warning and up to 12 months for a Final Warning, or more in “exceptional circumstances”.




Normal employment practice (as reflected in the Acas Code) is to wipe the slate clean once a warning has expired. It is normally unfair to take expired warnings into account when deciding whether to dismiss (Diosynth Limited v Thomson [2006] IRLR 284). However, there is no law that it is never unfair to take a lapsed warning into account. As always, it is a matter of what is reasonable, taking into account the whole context (Stratford v Auto Trail VR Limited [2017] UKEAT/0116/16/JOJ). Here is the leading case: