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Warnings
[ch 10: pages 333-335]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 comply with the minimum standards set by the Acas Code of Practice (see page 331) as well as with 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 unfair to dismiss without at least one formal warning clearly spelling out the risk of dismissal if behaviour does not change. There must be a right of appeal against the warning given 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 the 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 how important the warning was to the decision to dismiss (Bandara v British Broadcasting Corporation [2016] UKEAT/0335/15/JOJ).
A tribunal should 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). 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 231).
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. This is the leading case:
Mr Webb, an aircraft fitter, was seen with four colleagues watching TV in the locker room during working hours on the night shift. This was an offence capable of resulting in summary dismissal under the employer’s rules (fraudulent misuse of company time). Webb was dismissed for gross misconduct, but his colleagues were all given Final Warnings. Unlike his colleagues, Webb had already been given a 12-month final warning for the same kind of misconduct (on the previous occasion, the penalty had been reduced from dismissal to a final warning on appeal). Webb’s earlier warning had expired just three weeks before the second incident.
The Court of Appeal said Webb’s dismissal was fair. The employer was entitled to take into account the previous warning when deciding the appropriate sanction for the misconduct, even though it had already lapsed. Dismissal was within the band of reasonable responses for all five employees, said the court. It was not unfair for the employer to exercise its discretion to issue a lesser sanction, in the form of a final warning, to the other employees because they had clean disciplinary records, but to dismiss Webb because he did not.
Airbus UK Limited v Webb [2008] IRLR 309 CA
The Webb ruling was applied in this new case:
Mr Stratford had accumulated 17 formal disciplinary offences over 13 years of employment, plus many informal warnings. His most recent warnings (for failing to make contact while on sick leave and for personal use of company equipment) had expired when he was summoned to a disciplinary hearing for another disciplinary offence — having a phone on the factory floor — which he knew was against the rules. The dismissing officer told Stratford that he was dismissed because he had run out of chances, did not take company rules seriously and showed no prospect of improving his behaviour in the future. The EAT agreed that the dismissal was fair.
Stratford v Auto Trail VR Limited [2017] UKEAT/0116/16/JOJ