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Warnings – can they always be relied on?

The use of warnings in a fair disciplinary process is a well-established principle (both in case law and the Acas Code of Practice) and employers are usually able to rely on a live final written warning to justify escalating a process to the dismissal stage, even if the current misconduct is unrelated to that which gave rise to the final written warning.  Ultimately, however, a tribunal considering a claim for unfair dismissal will ask itself whether the employer's response fell within the band of reasonable responses in taking a decision to dismiss.

In the recent case of Way v Spectrum Property Care Ltd the Court of Appeal revisited the issue of warnings and confirmed that a warning given in bad faith should not be relied on by an employer to support a decision to dismiss.  Interestingly, in this case, at first instance, the employment tribunal judge had refused to hear evidence as to whether the warning was given in bad faith, and concluded that the Claimant had been fairly dismissed.  On appeal, the EAT considered that the Claimant had produced evidence to support the notion that the warning had been given in bad faith and that the employment judge ought therefore to have investigated it.  However, the EAT's decision held that even if bad faith had been found, in its view this would not have made any difference to the finding that the Claimant had been fairly dismissed. Judge Shanks noted, in particular, that the final written warning was valid ‘on its face’ and had not been challenged on appeal.

In the Court of Appeal, Counsel for the Claimant highlighted the decision in Wincanton v Stone which held that if a tribunal is satisfied that the first warning was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will not be valid and cannot and should not be relied upon subsequently.  In allowing the appeal in the Way case, and remitting it back to a differently constituted tribunal, the Court held that in order to determine whether the Claimant was unfairly dismissed it would be necessary for the tribunal to decide whether the warning given was given in bad faith.

In the present case, it was noted that there may be circumstances in which a dismissal following a final warning may be fair, notwithstanding that the warning is invalid. For example in a situation where an employee was guilty of misconduct which in itself justified dismissal, the fact that there was an invalid final warning would not, in these circumstances, invalidate the dismissal.  It is of course open to an employer to start a disciplinary process at the dismissal stage if the misconduct in question is sufficiently serious. 

Finally, by way of a reminder, in the Wincanton case the EAT also gave some useful guidance regarding the factors that a tribunal is entitled to take into account when considering the effect of valid warnings on the fairness of a misconduct dismissal:

  • The tribunal should take into account the fact of the warning.
  • The tribunal should take into account any proceedings that may affect the validity of that warning, for example an internal appeal or other proceedings in which it is being challenged. It is entitled to give those as much weight as it seems appropriate.
  • It will be going behind a warning (which is not permissible) to hold that it should not have been issued or to hold that some lesser category of warning should have been applied, unless the Tribunal is satisfied as to the invalidity of the warning.
  • It is not going behind a warning to take into account the factual circumstances giving rise to the warning. Just as a degree of similarity may, in some instances favour a more severe subsequent penalty, so a degree of dissimilarity may tend the other way. There may be some particular feature related to the conduct of the individual that may contextualise the earlier warning. An employer, and therefore tribunals, should be alert to give proper value to all those matters.
  • It is not wrong for a tribunal to take into account an employer's treatment of similar matters relating to other employees.
  • A tribunal must always remember that a final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.


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