Historic warnings and employee dismissals

The Court of Appeal has said employment tribunals should consider historic warnings, so should you? Phil Allen reports.

Many readers will be familiar with the problem of an employee criticising a previous warning when they are faced with potential dismissal. Should you consider what they say or even investigate those criticisms?

The answer is yes in some circumstances, following a Court of Appeal judgment. In Way v Spectrum Property Care Ltd the Court of Appeal has overturned earlier judgments and said that an Employment Tribunal, hearing an unfair dismissal claim, must consider whether a previous warning (relied upon as part of the decision to dismiss) was made in bad faith.

The facts

Mr Way was given a final written warning by his employer for inappropriate recruitment and failing to declare an interest in a job applicant, and at the time he did not appeal. Some time later, following an organisation-wide investigation into inappropriate use of e-mails, Mr Way was dismissed. The sanction of dismissal for the e-mail misuse was only imposed because Mr Way had an existing final written warning.

The question for the Court of Appeal was whether the Tribunal should have heard evidence about and considered the final written warning, when deciding if Mr Way’s dismissal was fair. The original Tribunal had declined to do so, but this judgment says that was wrong – they should have done.

The important principle is that it is legitimate for an employer to rely on a final warning if there were at least on the face of it grounds for imposing it, it was not manifestly inappropriate for it to have been issued, and it was issued in good faith. However, Mr Way was alleging that his final written warning had been given to him by a manger who he said was dishonest and had made the decision to cover up his own part in the flawed recruitment, having previously sanctioned Mr Way’s actions. As that was a complaint of bad faith, the Tribunal should have heard evidence about that aspect of the final written warning. If a dismissal relied upon a final written warning given in bad faith, the resulting dismissal should be found to be unfair.

What does this mean for me?

It is difficult when an employee, faced with further action, tries to re-open a previous warning. It can be time-consuming to try to review a process which has been concluded and sometimes the complaints are difficult to investigate.

This judgment certainly does not mean that you have to reconsider all criticised previous warnings when relying upon them, particularly if all the employee is saying is that the sanction was harsh or wrong. However, where the employee alleges some impropriety about the previous warning or alleges that it was clearly the case it shouldn’t have been imposed, the person considering the matter or hearing the appeal should enquire into what exactly is being alleged. In many cases they will want to undertake some investigation or clarification of the previous warning.

Whilst it is unlikely that someone conducting an internal hearing will decide that a historic warning was given in bad faith or was manifestly inappropriate, this will be your opportunity as an organisation to look into what has been raised and establish what (if any) risk exists should the employee claim unfair dismissal. Do take advice if your questions or enquiries bring the previous warning into question.

Comment

This employer’s investigation into inappropriate e-mail use clearly categorised the misuse into different levels of severity. That is why Mr Way was so clearly able to argue that without the previous final written warning he would not have been dismissed.

There can be a temptation in internal hearings to take the easier course of saying that dismissal is the appropriate sanction because of previous warnings, without establishing or deciding whether found misconduct considered on its own should result in dismissal.

In some circumstances explicitly relying upon previous warnings (only) is right. However, if an employee can/should be dismissed for the current misconduct alone, relying upon previous warnings as part of the dismissal introduces an additional degree of risk for an employer.

It is sometimes better to avoid categorising misconduct as not dismissable ahead of a hearing where there is any doubt – to avoid any problems or risks if those hearing the case decide that dismissal is the right sanction.

Phil Allen is a partner at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it..