The dismissal of an employee for a first offence (unless it amounts to gross misconduct) is likely to be unfair if they have not previously received any warnings. Some recent cases illustrate the importance of getting things right at these earlier warning stages to minimise the risk of unfair dismissal claims later on.
In one case, the Employment Appeal Tribunal held that a dismissal was unfair because the BBC took into account a live final written warning that was ‘manifestly inappropriate’ (i.e. ought never to have been imposed). One of the incidents that led to this warning being issued after 18 years’ unblemished service occurred some five months previously for which the employee had apologised and no further action was taken at the time.
Employers should therefore review live warnings before relying on them when dismissing. If appropriate, make it clear in the dismissal letter that the decision was based on a finding that the act amounted to gross misconduct so as to avoid questions being raised about previous warnings.
The general view is that expired warnings have to be artificially forgotten when deciding whether to dismiss. However, there are some situations where an expired warning can be taken into account. In one such case, where an employee had 17 expired warnings, the employer considered them and decided the employee would never improve. The employer had reached the end of its tether and the dismissal was fair. The EAT confirmed, however, that each case will turn on its own facts with regards to reliance upon expired warnings and cases where such reliance will be found to be fair are likely to be rare.
Some employers retain expired warnings on file where, for example, they need to take account of the full disciplinary and capability record when considering promotion, or, when defending a tribunal claim, to show that they have dealt effectively with complaints of employee harassment.
The Information Commissioner’s Employment Practices Code requires employers to have clear procedures on how expired warnings will be dealt with and it is also good practice to set out in your disciplinary procedure when it may be appropriate to apply an indefinite live warning e.g. where an employee has a history of allowing their conduct to lapse just after a warning has expired. Non compliance may result in both an unfair dismissal claim and a fine from the ICO.
We can assist in ensuring that your policies and procedures are both pragmatic and up to date.
If you wish to discuss the issues raised in this blog or need any other employment law advice, contact your usual adviser in the employment team.