In an appeal involving two lorry drivers from North-West England, the EAT President Mr Justice Langstaff has issued new guidance for employment tribunals about the status of written warnings. The message is that tribunals should not go behind earlier warnings, unless issued in bad faith. He also explained how to assess cases where the nature of the misconduct associated with the initial warning is different from the misconduct which resulted in dismissal.

The employment tribunal were faced with a situation where two drivers had been dismissed for different, fairly serious, disciplinary offences. But they both shared an earlier written warning about refusing to transfer depots, about which a collective grievance had been raised involving other drivers. The tribunal appears to have thought it unfair that in one case this earlier warning had led to dismissal, although in the past other drivers had been punished with a final written warning for the same offence.

These appeals prompted Mr Justice Langstaff to issue comprehensive guidance on the way to approach prior warnings in an unfair dismissal case, based on earlier case law. The key point is that while tribunals should not go behind earlier warnings, they are entitled to look at the circumstances giving rise to them, bearing in mind that it is the overall reasonableness of the employer’s conduct they are being asked to assess. In general, the greater the similarity between the two disciplinary incidents, the severer the penalty that will be reasonable. Conversely, the greater the dissimilarity, the greater the degree of leniency that will be expected. However, if a final written warning has been issued, that normally means that further misconduct of any nature will “often and usually be met with dismissal”.