Part two of our blog series containing advice for employers dealing with disciplinary proceedings. Should you take historical disciplinary warnings into account when deciding to dismiss?

There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future. We’ll do this in a series of blog posts over the course of the next couple of weeks, covering a different reason in each post. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.

Next up is the occasional over-reliance that employers place on historical disciplinary warnings when deciding to dismiss. There have been a few cases on this point in recent years, a couple of which are referred to below.

In Wincanton Group v Stone, the EAT clarified the extent to which a tribunal considering the fairness of a dismissal by virtue of incremental disciplinary action, could scrutinise the fairness of the warnings on which that dismissal was based. The case concerned a driver who was dismissed on the grounds of conduct following a serious accident and also because he had a pre-existing written warning for a different type of disciplinary offence. The judgment provided guidance to tribunals dealing with dismissals that involve previous disciplinary warnings and emphasised the need for reasonableness under Section 98(4) of the Employment Rights Act 1996. It stated that tribunals should:

 

  1. take into account the earlier warning;
  2. take into account any proceedings that may have affected the validity of an earlier warning (e.g. an internal appeal);
  3. consider what regard the employer had for any such challenge before taking the decision to dismiss; but
  4. avoid “going behind” earlier warnings by considering their validity, unless satisfied that it’s appropriate to do so.

 

Regarding the last point, the judgment clarified that tribunals would not be “going behind” a warning by having regard to the factual circumstances that gave rise to it, e.g. considering whether the type of conduct that was the subject of an earlier warning was similar to that which gave rise to dismissal and the consistency of the employer’s approach to such situations.

In the case of Simmonds v Milford Club, the EAT reconfirmed that where employment is terminated as a result of incremental disciplinary action and a previous disciplinary sanction was inappropriate, that can be enough to render the dismissal unfair. The Claimant in that case was disciplined for giving staff a cash bonus at Christmas instead of a bottle of wine as instructed. As he was already subject to a final written warning, he was dismissed. However, the final warning related to an incident where the Claimant had asked his wife to deposit the club’s takings while he waited outside in the car they were in as he had been unable to park near the bank. In finding the dismissal fair, the tribunal had not taken account of whether the final warning had been in accordance with the club’s disciplinary procedure. The Claimant’s appeal was allowed and the case remitted to the tribunal to consider whether that warning was ‘manifestly inappropriate’, a test with a higher threshold than that which is applied to the reasonableness of a dismissal.

It’s also worth pointing out that in the Wincanton Group v Stone case, the EAT also clarified that it’s fine for an employer to aggregate disciplinary sanctions issued for different types of misconduct. This is consistent with the fact that there’s nothing in the Acas Code of Practice on Disciplinary and Grievance Procedures to suggest that similarity is required to justify a dismissal that arises from the cumulative effect of a series of disciplinary warnings. In fact, you could go so far as to say that a final written warning actually implies that further misconduct of whatever nature will result in dismissal. That said, it’s still preferable and advisable to spell this out in the disciplinary procedure and decision letters applicable to formal warnings.

Chris Nagel, Director / Head of HR at EML, comments…

 

“Employers often fall into the trap of thinking that because an employee is on a final written warning, dismissal on account of an accumulation of warnings is a foregone conclusion if he or she is found guilty of a further disciplinary offence. However, they should always stop and think about how appropriate and procedurally robust those prior warnings were before proceeding in this vein.”

Look out for our next post, which will deal with the choice of decision-maker in disciplinary proceedings.