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Final written warnings: will the Employment Tribunal re-open old warnings (and do internal hearings ever have to do so)?

Laura Roberts, a Chartered Legal Executive in our Liverpool team, talks you through this tricky decision.

With the exception of dismissals for gross misconduct, dismissing an employee for a first offence is likely to be unfair, if they have not previously received any warnings. It is, however, possible to dismiss an employee fairly for an act of misconduct following a previous warning.

When determining the appropriate penalty for an offence, employers are entitled to take into account any live warnings, including any final warnings on the employee’s record.

It has recently been confirmed in the case of Beattie v Condorrat War Memorial and Social Club that the Tribunal is not obliged to look behind a final written warning where, on the face of it, there was a valid reason for it to be issued.

Live warnings: the legal position from previous cases

It is not the Tribunal’s function to re-open the issue of whether a final warning should have been issued or not, unless there is an issue over whether it was issued with an ‘oblique motive’ or in bad faith.

In Davies v Sandwell Metropolitan Borough Council it was confirmed that, in the ordinary course of events, an employer considering dismissal is not required to re-open the circumstances in which a live final written warning was given. The case held that the overriding principle is that it is legitimate for an employer to rely on a final warning, provided that:

  • It was issued in good faith;
  • There were at least prima facie grounds for imposing it; and
  • It was not ‘manifestly inappropriate’ to have issued it.

The case of Wincanton Group plc v Stone emphasised that, when considering the fairness of a dismissal, the Employment Tribunal must always remember to focus on the reasonableness of the employer's act in treating conduct as a reason for the dismissal. Therefore, if the Tribunal is satisfied that the warning was not issued in bad faith and there were prima facie grounds for making it, then it would be valid.

In Co-operative Retail Services Ltd v Lucas the Employment Appeal Tribunal found that the Employment Tribunal had been entitled to disregard a final warning, as no reasonable employer would have dealt with the previous incident with a final warning. This would be the case if the warning was issued in "manifestly inappropriate" circumstances or without prima facie grounds. When considering this issue the Employment Tribunal should have regard to the factual background and the circumstances in which the final warning was given, including the employer's own procedures for the issuing of oral warnings, written warnings and final warnings.

In Simmonds v Milford Club it was held that it is only necessary for an Employment Tribunal to engage in a factual enquiry and detailed scrutiny of a previous warning if, based on the facts, there is a real concern that the warning was manifestly inappropriate.

Beattie: what happened?

Ms Beattie was dismissed for refusing to sell tickets for a function in order to avoid any allegations against her if money went missing, having previously received a final written warning following the unexplained loss of 26 bottles of spirits.

The Tribunal found that Ms Beattie’s dismissal was procedurally unfair because no disciplinary hearing had been held, but reduced her compensation to nil on the basis that there was a 100% chance she would have been dismissed in any event.

Ms Beattie appealed and challenged the earlier final written warning that she had received. She argued that she had herself carried out the only investigation into the loss of stock and that she had accepted 'part responsibility' and offered to repay the cost.

The Employment Appeal Tribunal upheld the unfair dismissal and agreed that the 100% reduction was appropriate. The EAT confirmed that the Employment Tribunal had adopted the correct approach; the general rule was that earlier decisions should not be reopened. The Employment Tribunal had considered whether there was a prima facie case for issuing the warning and, in doing so, had deemed it appropriate to rely upon it.

What that means in practice

The case of Beattie is a reminder that all allegations of misconduct should be investigated thoroughly. This includes following a fair procedure even in circumstances where an employee has been issued with a previous warning.

An Employment Tribunal will not generally look behind a previous warning. However, if there is an allegation that the warning was issued in bad faith or it is ‘manifestly inappropriate’, there is a risk the Employment Tribunal will have to look further into the circumstances of it being issued. This may include examining any policies or procedures in place in respect of warnings.

It is therefore important that all warnings are issued fairly and consistently and in line with such procedures. It is also crucial that, when issuing warnings, employers should always ensure employees are made aware that any acts of further misconduct, of whatever nature, may result in further disciplinary action, up to and including dismissal. Spell that out clearly in the decision letters.

Internal hearings and re-considering warnings

When dealing with a dismissal or appeal, you will not generally be expected to re-open or re-investigate an employee’s previous warnings. Your role is generally only to consider how previous warnings impact on the appropriate sanction in your case.

However, it is always best to be alert to any ‘red flags’ around the previous warning, especially if the employee specifically raises them. Is there anything that doesn’t feel right? Is the previous warning wildly out of step with the sanction you would have imposed, or clearly disproportionate to the issues at stake? If so, you may want to tackl the issue head-on and look back at the previous warning, to ensure a fair outcome and pre-empt these concerns arising much later at a Tribunal hearing.

If you require guidance and support on any employment issues, please contact our employment law solicitors. We can provide expert advice on employment tribunal litigation.