The ACAS Code on disciplinary procedures advises that, except in cases of gross misconduct, the dismissal for a first misconduct offence is likely to be unfair if the employee has not previously received warnings. In JJ Food Service Ltd v Kefil, the claimant had worked for his employer for 14 years, during which time there had been only one complaint about his conduct – described in a 2010 letter from his employer as an informal warning about his management style. However, a year later, there were complaints about his alleged mistreatment of junior staff and, following a disciplinary meeting, he was dismissed.
The Tribunal concluded that dismissing for misconduct without having warned the employee formally that his management style had to change (and that if it did not he might be dismissed) was unfair: it was outside the "range of reasonable responses", especially as he had not been given any management training after the informal letter in 2010.
The EAT upheld the Tribunal's decision; the claimant should have been given a misconduct warning and it should have been phrased not as a warning that the employee should stop doing what he had been doing but that if he did not stop he would be dismissed for it. The employer's argument that an employee in his position as a manager ought to have known that this would be the consequence of his behaviour was rejected.
Although this case appears to contrast with the recent Buzolli v Food Partners Ltd decision (where the employer's failure to follow the ACAS Code on warnings did not make the dismissal unfair), in that case the facts showed that the employee was aware of the consequences of a final written warning and, in addition, the employer's disciplinary policy also made it clear.