Warnings 



Formal disciplinary procedures should specify a series of warnings leading to dismissal. There is no statutory requirement for a verbal warning before a written warning (although disciplinary procedures that provide for a verbal warning must be followed). 



Any dismissal following a series of warnings must comply, as a minimum, with the Acas Code of Practice (see page 357). Any more rigorous contractual disciplinary procedure must also be followed.


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 that clearly spells 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 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 as that which led to the original Warning.



Whether or not a dismissal triggered by a live Final Warning is fair depends on the overall reasonableness of the dismissal, considering all the circumstances, including the amount of weight that was placed on the warning when making the decision to dismiss (Bandara v British Broadcasting Corporation [2016] UKEAT/0335/15/JOJ).


A tribunal will not usually revisit 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 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 the decision to impose it that “once pointed out, shows that it plainly out not to have been imposed” (Bandara v British Broadcasting Corporation [2016] UKEAT/0335/15/JOJ).


It is very difficult to successfully challenge 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 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 265).