Employment and Professional Disciplinary E-Bulletin May 2019

Warnings and Pre-Warning Misconduct

Cited Cases:

  • Sweeney v Strathclyde Fire Board UKEATS/0029/13 (12 November 2013, unreported)

  • John-Charles v NHS Business Services Authority UKEAT/0105/15 (12 October 2015, unreported)

Not All Warnings are Equal

When an employer determines that an employee has committed acts of misconduct it will have a number of sanctions at its disposal. At one end of the scale, an employer may properly determine, after reasonable investigation, that the conduct constitutes gross misconduct and that the employee is to be summarily dismissed without notice.

However, the normal sanction for misconduct, as set out at para 19 of the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”), is for the employer to give the employee a written warning. If an employee’s first misconduct is sufficiently serious it may be appropriate to move directly to a final written warning, often referred to as a ‘first and final warning’. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation (para 20 of the ACAS code).

The Purpose?

The purpose of a warning is obvious. It gives the employee an opportunity to address their conduct, change and improve in the knowledge that if they commit further acts of misconduct within a set period then more serious measures may be taken. In a normal case, one would expect a misconduct dismissal to follow a linear or chronological pattern in terms of the date the warning was given and the commission of further misconduct.

For example, an employee already has a ‘live’ final warning in place then commits a ‘new’ act of misconduct, leading to his dismissal.

The Issue

What if, however:

  • the ‘new’ misconduct committed by the employee post-dates the original misconduct which led to a final written warning being given; but

  • the ‘new’ misconduct pre-dates that final written warning; and

  • the employer, taking into account the existence of that final warning, decides to dismiss the employee when it would have otherwise imposed a lesser sanction?

In such circumstances an employee could argue that the written warning should have been ignored as it did not exist when the ‘new’ acts of misconduct took place and that it was therefore unfair to dismiss on the basis that final warning.

This somewhat unusual situation was exactly what happened in Sweeney v Strathclyde Fire Board (2013).

The Facts

In Sweeney, the Claimant was a retained fireman with the rank of watch commander. He was dismissed because he had been convicted of criminal offences which were held to be not befitting of office held by him. It was accepted that the Respondent would have issued a final warning rather than dismissing, in light of all the circumstances, had it not been for a final written warning which the Respondent had given the Claimant for unauthorised absences. The unauthorised absences took place after the criminal acts, but before the Claimant’s conviction and before the disciplinary procedure relating to the criminal conduct.

The tribunal found the dismissal fair and the employee appealed.

On Appeal

On appeal, the employee argued that it was unlawful to take the final warning into account because a final written warning cannot be relevant to conduct that pre-dates it as a matter of law. Lady Stacy, sitting alone in the EAT, disagreed and upheld the tribunal’s decision. She held, at paragraph 36 of the Judgment, that:

In my opinion, the Respondent was entitled to take into account all that appeared on the record of the Claimant…

I do not accept [the] argument that the final written warning requires to be construed as referring only to misconduct taking place after the date of the warning.

Rather I accept [the counter] position broadly to the effect that a written warning final or otherwise is a fact which a reasonable employer is entitled to have in mind”.

She went on to state:

“while a warning is an admonition that tells the employee that future misconduct will have certain consequences, it is my opinion more than that. It is also a recording of the commission of misconduct in the mind of employer and employee… the Respondent was entitled to look at the Claimant’s record when deciding on the disposal…”

There will, of course, be limits to this principle. In Sweeney it was not argued that the final warning was fundamentally flawed so that it could be regarded as a nullity or that it was issued in bad faith. If such were established no doubt the appeal would have succeeded.

A Qualified Principle – Natural Justice

Similarly, the case of John-Charles v NHS Business Services Authority (2015) also demonstrates that a final warning must not be used where it breaches the normal ideas of natural justice.

In John-Charles the Claimant had received a first written warning in relation to failure to follow reasonable management instructions. An appeal against this warning remained unresolved as at the Claimant’s dismissal. Prior to the issue of that warning, however, a further incident occurred which led to the Claimant being accused of further misconduct in relation to the Claimant’s use of another employee’s computer. This was investigated, prima facie evidence of misconduct found, and thus the Claimant was informed the matter would proceed to a formal hearing. He was also advised that the manager conducting the disciplinary hearing (“Ms F”) would not be told about the previous warning unless and until any of the allegations were found proven.

Of the ten allegations against the Claimant, seven allegations of misconduct (three of which were characterised as gross misconduct) were upheld at the hearing by Ms F. Ms F, in considering the appropriate sanction, initially opted for a final warning and not dismissal but then found out about the original warning. While Ms F knew about the appeal, she had an incomplete picture of the appeal process and understood that it had lapsed on the Claimant’s failure to pursue it. In the light of the original warning, Ms F then revised her initial decision and opted to increase the penalty to dismissal. The Claimant was not informed of Ms F’s change of view or the reason for it and was therefore not given the opportunity to make representations as to the increase in penalty.

Following Sweeney, the EAT in John-Charles held that there was no unfairness in the fact that the warning had been used by the employer but nonetheless found that the dismissal was procedurally unfair as the manner of its use had breached of natural justice.

Conclusions

The authorities are therefore clear that it is permissible for an employer to use warning when considering the appropriate sanction for pre-warning misconduct. However, as John-Charles demonstrates, employers should nonetheless exercise care so as to satisfy themselves that the warning itself is not a nullity or that the use of the warning constitutes a breach of natural justice.

Philip Smith

Practice Areas: 
Employment