Disciplinary warnings

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

Any dismissal following a series of warnings must comply with the Acas Code of Practice (see page 280). Some disciplinary procedures are more demanding of the employer than the Acas Code. Failure to follow any internal procedure is likely to make a dismissal unfair. Failure to follow a contractual disciplinary procedure will also be a breach of contract. Employers can be forced to follow a contractual disciplinary procedure by means of an injunction, although only a minority of employees, for example NHS consultants, benefit from contractual (as opposed to non-contractual) disciplinary or capability procedures.

Acas recommends that most issues are best approached informally first, 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. There must be a right of appeal at each stage.

If an employer regards a particular type of misconduct as serious enough to justify moving straight to a Final Warning, this must be explained clearly in the procedure and communicated to employees, for example during induction. Otherwise, any later dismissal could be unfair.

Except in the most serious of cases, it is unfair to dismiss without at least one formal warning.

An employer should act consistently, and should always take into account how it treats other employees in a similar situation (see page 277).

Whether or not a dismissal triggered by a live Final Warning is fair will depend on the overall reasonableness of the dismissal decision, taking into account all the circumstances. The “band of reasonable responses” test applies (see page 275). The EAT has said that in practice, employees should understand that any further misconduct during the life of a Final Warning is likely to result in a fair dismissal, and that any other outcome would be an exception (Wincanton v Stone [2012] UKEAT 0011/12/1110).

Very occasionally, it can be within the band of reasonable responses to take into account a live warning even if it is under appeal. However, everything depends on the particular facts of the case (Rooney v Dundee City Council [2013] UKEAT 0020/13/1510). In Rooney, the EAT ruled that it was not unfair to take account of the Warning even though it was under appeal because the appeal had been delayed several times, and the second offence, which led to the dismissal, was very similar to the one that led to the Warning.

Reps should note, in particular, that:

• there is no rule that only Warnings for similar conduct should be taken into account when deciding whether to dismiss; and

• there is no rule that only serious misconduct can trigger a dismissal following a Final Warning.

A tribunal is not allowed to reinvestigate the facts that led to the Final Warning to decide whether or not it should have been issued in the first place. The only exception is where there is evidence of bad faith or improper motive, or the Final Warning was manifestly inappropriate (Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 139). In practice, this makes it very difficult to overturn a dismissal triggered by a live Final Warning. Here is a rare successful example, based on a tribunal finding that the Final Warning was “manifestly inappropriate”: