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MILs Legal UpdateBack

MILsDisciplinary Warnings: an Employer’s Guide

Some good news for employers, surely not?

It has long been established in employment law that employers can rely on a disciplinary warning system in their disciplinary policy/handbook and that, provided the employer has a fair reason (as defined in the Employment Rights Act 1996) and follows a fair warning system, then they can ultimately dismiss employees, if they do not improve following a warning.

ACAS publish guidance in the ACAS Code of Practice in order to assist employers. All employers are well advised to have a disciplinary policy in line with the ACAS code.

The main test for any claim for unfair dismissal in legislation is set out at Section 98 of the Employment Rights Act 1996. The test requires an Employment Tribunal to determine whether, in all the circumstances, an employer acted reasonably or unreasonably in treating its reason as sufficient reason for dismissing an employee in accordance with equity and substantial merits of the case. In most capability or conduct dismissals that do not involve gross misconduct, the presence or absence of warnings are a crucial factor in deciding whether any dismissal is fair or unfair.

Law that helps Employers: recent decisions

Unlike in some other areas of employment law, over recent times case law has often been pro-employer in this area. Below we look at some main principles from key cases, principles that may assist you as a business when disciplining staff.

Challenging a previous warning

  • Davies v Sandwell MBC (2013) the Court of Appeal has confirmed the difficulty an employee faces in challenging a previous warning on their file. It has confirmed that unless there are really exceptional circumstances, then an Employment Tribunal should not be going behind and trying to re-open a previous warning on an employee’s record.

This follows a previous case from the Employment Appeal Tribunal (EAT) in Wincanton Group Plc v Stone which effectively held that an employee would need to establish the previous warning was issued for an improper motive (i.e. effectively a sham) or was “manifestly inappropriate”.

Comment: Provided employers have gone through a basic ACAS procedure, then employee arguments at Tribunal about previous warnings being unfair, should be disregarded.



Similarity of the facts on which warnings are escalated

It is a common misconception that offences need to be the same in order to escalate to the next warning (or to dismissal if the employee is on a final written warning). Also in Wincanton Group Plc v Stone (above) the Employment Appeal Tribunal has confirmed that when relying on a previous disciplinary warning there is not necessarily any need for similarity between the two acts involved.

The ACAS Code of Practice sets out best practice and if the offences are of an entirely different nature (such as capability/conduct) then it may be difficult for employers to elevate the warning process. Provided however the warning is for the same basic reason (e.g. broadly for capability or conduct) then there does not have to be a coherence between the facts to escalate. A final written warning for misconduct could therefore be relied upon when the further act of misconduct that occurred was very different. This can still result in an entirely fair dismissal.

Reliance on expired warnings

An employer cannot rely on a warning that has expired, but that does not always mean that an expired warning is irrelevant.

In Airbus UK Ltd v Webb an employee was dismissed for an offence for which his colleagues only received a final written warning. On reviewing employee past records it was clear to the employer that there was an expired warning for the employee who was dismissed, and that was taken into account, i.e. the normal consequences would have been dismissal, but for his colleagues their clean records resulted in mitigation into a final written warning, whereas for the employee in question there was no such mitigation as he had committed a similar offence before.

That of course is different from specifically relying on an expired warning, but demonstrates that an expired warning can still be relevant in mitigation and used by an employer.

Misconduct that pre-dates the warning

Finally the case of Sweeney (deceased) v Strathclyde Fire Board the Employment Appeal Tribunal had to consider whether the employer could rely on a warning when the dismissal related to conduct that took place prior to that warning. Subsequent to issuing a warning the employer had notice of a previous misdemeanour which they were entirely unaware of at the date of issuing the warning. In a decision that surprised many the EAT held that the employer could rely on the warning in this situation and found the employer had acted reasonably in all the circumstances.

This case is not generally to be relied upon and was specific to the facts, but shows that conduct before a warning can in some circumstances be relied upon to elevate the disciplinary procedure to the next level. Whilst that decision arguably undermines the very purpose of a warning (that the employee knows of the same, and has a chance therefore to improve) it does remind us that the test laid down at Section 98 of the Employment Rights Act 1996 is quite broad and can be supportive to the reasonable decisions of the employer.


The above cases show that, although employers often feel that employment law is always against them, there is a degree of latitude afforded, provided always the employer has a basic fair procedure in place. It should not be the function of the Employment Tribunal to second guess the business’ decision and the above cases remind us that as long as the warning was issued in good faith and there are prima facie grounds for issuing the warning, the Tribunal should support the employer, and not try to unpick the employers decisions on overly technical or procedural grounds.

Robert Titcombe, Solicitor. Motor Industry Legal Services

Posted by Sue Robinson on 24/10/2014