The extent to which an employer can take prior warnings issued to employees into account can be confusing. The recent case of Trye v. UKME (UK Mission Enterprise Ltd) UKEAT 0066_16 is a helpful reminder of the Tribunal's approach.

The facts

In this case, UKME gave Ms Trye a final written warning after a series of misconduct allegations of failing to follow reasonable instructions and bringing the company into disrepute were upheld.

Twelve months on, Ms Trye faced allegations of failing to comply with the company's absence procedures. The allegations were upheld and the company dismissed her. The ET held her dismissal to be fair.

The decision

Ms Trye appealed to the EAT. The EAT had to decide whether it was reasonable for the company to treat the misconduct, taken with the previous warning (assuming there were grounds for imposing it), as sufficient to dismiss. Could the company rely on the earlier warning? The EAT did not need to be concerned with whether the company issued the warning for different conduct.

The EAT held that if a final written warning is on file, only in exceptional circumstances will further misconduct not result in dismissal. This is the case regardless of whether the further misconduct was serious enough in itself to warrant dismissal, or whether the warning is current or has expired.

Comment

This is welcoming reassurance for employers. With regard to previous warnings, employers can take into account any live warning on the employee's personnel file. They may only take into account any expired warning where that warning is not the principal reason for any resulting dismissal. In other words, the circumstances would have justified dismissal anyway. There is some risk in moving to dismissal where there is only a first written warning on file, as opposed to a final written warning. Indeed the ACAS code does not give any certainty for an employer on the approach which it may be fair to take. Previous case law has given some general guidance about the factors that a tribunal may consider when deciding the effect of valid warnings on the fairness of a conduct dismissal:

  • The tribunal should take into account any proceedings that may affect the validity of that warning, such as an internal appeal.
  • It will be going behind a warning (which is not permissible) to hold that an employer should not have issued a warning or to hold that an employer should have applied some lesser category of warning.
  • It is not going behind a warning to take into account the factual circumstances resulting in the warning. Just as a degree of similarity may sometimes favour a more severe subsequent penalty, so a degree of dissimilarity may tend the other way.
  • It is not wrong for a tribunal to consider an employer's treatment of similar matters relating to other employees.
  • A final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.