Dismissals triggered by Final Warnings

An employee with a Final Warning risks dismissal if they reoffend while the warning is still “live” (in other words, while the time span of the warning has not yet lapsed). The EAT has said that as a general rule, any 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, the conduct must be the same kind or the same level of seriousness as the conduct that led to the warning. However, an employer should give less weight to a warning if the circumstances are unrelated than if they are directly relevant.

Whether or not a dismissal triggered by a Final Warning is fair will depend on the overall reasonableness of the dismissal given all the circumstances, including whether the employee took up the chance to appeal against the warning.

Tribunals do not normally reopen the facts that led to a Final Warning to investigate whether it should have been given in the first place. The only exception is where there is evidence that the warning was given in bad faith, for an improper motive or was manifestly inappropriate.

In other words, a member with a live Final Warning is at serious risk of dismissal if there is any fresh misconduct during the life of the warning.