Employers can rely on a current prior warning to support a dismissal for misconduct which would not justify dismissal on its own, even where the two instances of misconduct are not similar.  This is particularly so where the terms of the warning make it clear that any further misconduct of any nature could result in further disciplinary action.

When considering the reasonableness of dismissal for subsequent misconduct, a tribunal is not entitled to disregard a valid warning (issued in good faith and with prima facie grounds) because it considers it unjustified.  However, an employer and therefore the tribunal should take into account the factual circumstances giving rise to the warning; the degree of similarity of the misconduct may be a relevant factor.  It will also be relevant to consider whether an appeal or other challenge is pending and whether, having given the warning to the claimant (but before his dismissal), the employer subsequently took a more lenient approach to similar misconduct by other employees.

The EAT also noted that 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. (Wincanton Group v Stone, EAT)

Caselaw has established that employers may dismiss fairly for misconduct if this is within the “range of reasonable responses”.  The Court of Appeal has ruled that there is no need to apply a more stringent test of proportionality where human rights are engaged, for example because of potential damage to reputation or job prospects.  These rights are adequately protected by the range of reasonable responses test, as the reasonable employer should have regard to the gravity of the consequences of dismissal when determining the nature and scope of a fair process and reasonable investigation. (Turner v East Midlands Trains, CoA)