Many organisations will issue a formal warning to their employee regarding their conduct, en route to dismissing them. Here, Employee Management Ltd (http://www.employeemanagement.co.uk) gives some much-needed disciplinary advice on this practice, reminding businesses that there is a risk associated with depending on a prior warning in justifying the dismissal of an employee.

As a general rule, the decision of an employer to issue a final written warning subsequently used as the basis for dismissal is not examined by employment tribunals. However, it has become apparent through a recent EAT case, Simmonds v Milford Club, that if the facts lead to real concern that a final written warning may have been manifestly inappropriate, a tribunal will take a closer look at that warning.

An employer is acting fairly in relying on a final warning when dismissal is being considered, on the grounds that the warning was issued in good faith, clear grounds existed for giving the warning and issuing the warning was not manifestly inappropriate.

It has been indicated by the Court of Appeal that where the outcome of an appeal against a final warning is pending, this is a circumstance that should be taken into account by organisations conducting disciplinary investigations when considering the potential dismissal of an employee on the grounds of a further act of misconduct. If an appeal’s outcome is to be determined imminently rather than in a number of weeks and months, it may constitute unreasonable behaviour by the employer to dismiss the employee prior to that outcome being known.

It has also been shown in case law that a tribunal may still review the circumstances giving rise to a final written warning in the event of an employee’s failure to appeal it, prior to being dismissed for a later act of misconduct or poor performance.

Employers can also take into account a lapsed warning when deciding whether to dismiss for a similar offence, but it should not be the main dismissal reason, according to the Court of Appeal in Airbus UK Limited v Webb. What this means is that a particular case’s circumstances must be sufficient on their own to justify dismissal, with a lapsed warning being more of an additional point on which the employer can rely.

It was also recently confirmed by the Court of Appeal in Christou and another v London Borough of Haringey that it may be reasonable for an employer to discipline an employee for the second time in relation to the same offence – especially in the event of new evidence emerging.

There are therefore various steps that businesses undertaking workplace investigations are advised to take to minimise potential difficulties when using a final warning as the basis for a dismissal, including looking at situations on a case-by-case basis.

Employee Management Ltd (http://www.employeemanagement.co.uk) is happy to provide employers with specialist legal advice so that they can minimise their chances of requiring employment tribunal representation – which we also offer to a high standard.