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 following a series of warnings must comply, as a minimum, with the Acas Code of Practice (see the box opposite). If the employer has put in place any more rigorous contractual disciplinary procedure, that too must 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 needs to 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 always 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, 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 by the employer, or where the Final Warning was clearly and obviously unreasonable. 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).


Reasonable adjustments should be made to the stages and penalties under disciplinary procedures (including attendance management procedures) to accommodate disability (see Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265).