With the focus we often have on dismissal, it’s perhaps tempting to treat warnings as less significant. However, it is often worth remembering in dealing with a warning, the possibility of an employee resigning and claiming constructive unfair dismissal if it’s been unfairly handled or indeed gives ground for a discrimination complaint. For example, issuing a warning to an employee regarding a disability with regards to the number of absences they’ve had could be discrimination arising in consequence of the disability.
There is also the risk that further down the line when you are attempting to rely on, for example, a final written warning in order to move to dismissal for a fresh offence, the employee may argue that the final written warning had been issued in bad faith and that you shouldn’t be able to rely on it. An example of a manifestly inappropriate warning in a May 2015 case against the BBC was where a radio producer was given a final written warning for shouting at a colleague and for not giving sufficient editorial prominence to the birth of Prince George. This was found to have been too harsh a sanction and that a first written warning for this would have been appropriate. If an employer has relied on an inappropriate warning this could turn any subsequent dismissal into an unfair one.
What if the warning was live when a further act of misconduct occurred but is lapsed by the time of the disciplinary investigation or hearing having been completed? The case law here is clear that if there was a live warning which has now expired at the time of the hearing but was live at the time of the incident, you can still rely on the now expired warning.
You need to take care in warning letters not to give the impression that once a warning has expired it will be deleted from somebody’s record. Some warnings say it will be “removed from your file”. A better form of words would be to say, “it will no longer remain active”. Indeed, it may be worth going even further in policies and in letters and making it clear that where there has been a history/pattern of behaviour whilst some of the warnings may no longer be live they may be taken into account when assessing that pattern of behaviour.
This was the case in a recent case where somebody had had 18-warnings. The employee had been caught using his mobile phone on the factory floor contrary to express rules, and the manager conducting the disciplinary hearing concluded that a Final Written Warning was the appropriate sanction. However, he then noted that this was the 18th time the employee had been subject to disciplinary procedures and concluded that he was very unlikely to take any notice of a Final Written Warning and that dismissal would be the appropriate outcome, and further misconduct seemed inevitable. This was upheld by the EAT as a fair outcome: prior misconduct is a factor that can be taken into account in deciding whether or not to dismiss.