Warnings

Formal disciplinary procedures should specify a series of warnings leading to dismissal. There is no legal requirement for a verbal warning before a written warning.

Any dismissal that follows a series of warnings must comply, as a minimum, with the Acas Code of Practice (see page 285). Any more rigorous contractual disciplinary procedure in place must also be followed.

Acas recommends that most issues are best approached informally before using a formal procedure.

A disciplinary procedure that complies with the Acas Code 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. Except in the most serious of cases, it is unfair to dismiss without at least one Formal Warning.

There must be a right of appeal at each stage of the procedure.

An employer should act consistently, and should always take into account how it treats other employees in a similar situation (see page 285).

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 to trigger a dismissal following a Final Warning the conduct that triggers the dismissal must be the same kind or the same level of seriousness.

Whether or not a dismissal triggered by a live Final Warning is fair will depend on the overall reasonableness of the dismissal, taking into account all the circumstances. A tribunal will not usually reopen the facts that led to a Final Warning to decide whether it should have been given in the first place (Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139). The only exception is where there is evidence of bad faith on the employer’s part or where the Final Warning was obviously unreasonable. In practice, it is very difficult to overturn a dismissal triggered by a live Final Warning. For a rare example of a successful claim, see the case of Simmonds v Milford Club [2012] UKEAT/0323/12/0612.

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

Looking behind a disciplinary warning to see why it was given in the first place, or ignoring that warning, is not normally a reasonable adjustment (General Dynamics Information Technology Limited v Carranza [2014] UKEAT/0107/14/KN) (see Chapter 6: Reasonable adjustments, on page 166).