An employer who has started an informal process appropriate only for less serious misconduct will need new evidence of more serious issues before it will be fair for it to stop that process and instead dismiss under a formal disciplinary procedure. A simple change of heart will not be enough, so employers should carefully consider the seriousness of the allegation before deciding which procedure to use.

Tribunals will be entitled to view the initial adoption of the informal process as an indication of the employer's view that the alleged misconduct was relatively minor. Convincing new evidence will be needed to justify a change in that view. Employers should ensure that any decision to move to a formal procedure in light of new evidence is fully documented and explained.

In this case an employee whose misconduct was initially dealt with under a "Fair Blame Policy", for which the most severe sanction was a written warning, was unfairly dismissed when substantially the same misconduct was used as the reason for his dismissal under the formal disciplinary procedure. (Sarkar v West London Mental Health NHS Trust, CA)