What aspects of any previous warning should you be looking at if you are in this situation?
The starting point is to ask yourself whether you are relying on the final warning. Is the misconduct that you are dealing with so serious that you are entitled to regard it as gross misconduct justifying dismissal on its own? If that is the case, you have no need to consider the final warning.
Alternatively, if the misconduct is of a lower grade such that it would only lead to a dismissal in the event of there being an existing final warning, or if you believe the misconduct to be gross misconduct justifying dismissal but want to keep the safety net of relying also on the final warning, then that warning will be relevant.
You should ensure that the earlier warning clearly spelt out that the consequences of further misconduct might be dismissal.
You should check carefully what the final warning says. Does it state that any further misconduct may lead to a dismissal or does it refer only to “misconduct of a similar nature” or “any repetition”? If it is the latter, make sure that the alleged misconduct is of a nature that does trigger a potential dismissal. Similarly check that the final warning remains current and has not expired.
To what extent should you review the validity of the final warning?
The Court of Appeal have recently provided some useful clues in the case of Adegbola v Marks and Spencer plc when they considered how far a Tribunal should explore the circumstances of the final warning where an employee subsequently commits a further act of misconduct and is dismissed.
They confirmed that a Tribunal may consider the reasonableness of a previous final written warning when assessing the fairness of a dismissal and that, applying previous case law, the Tribunal should be satisfied that the final warning had been given in good faith.
What does that mean for an employer contemplating dismissing an employee who is already on a final written warning?
Certainly, if the employee disputes the validity of the final warning, it would be wise to check back to see that the evidence suggests that it had been given in good faith. The odd procedural hiccup in the process will probably not mean that the warning was given in bad faith. However, is there anything that suggests more serious shortcomings in the warning? Certainly you would be wise to listen to what the employee has to say about the final warning and it would be dangerous to ignore it out of hand on the basis that the time for debating it has passed.
If the employee did not appeal against the final warning at the time it was given, you would be entitled to treat a subsequent complaint with some scepticism. However be on the look out for any information which is being put forward which does suggest bad faith may have been involved.
What if the employee does not volunteer any challenge to the final warning? It is probably safe to proceed without reviewing the final warning. It will be difficult for an employee who raises no complaint at the dismissal stage to later argue that the earlier warning had been given in bad faith.
It’s worth taking these careful steps, not least because in such a situation, the employee may start off with some sympathy at the Tribunal if they have been dismissed because of something that may well fall short of amounting to gross misconduct.
For more information about any of the issues covered in this update, or if you are an employer or employee needing further advice, please get in touch with our Employment solicitors today.
