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Should a warning be taken at face value?

Posted on Nov 15, 2016 in Employment Law, HR Law

It is a feature of most disciplinaries policies, and is recognised by the ACAS Code, that an employer may take into account a live disciplinary warning when reaching its decision on a fresh disciplinary matter and determining the appropriate sanction.   Earlier warnings can be particularly relevant where the new misconduct may not warrant dismissal on its own but is still sufficiently serious to “top up” an earlier warning and result in dismissal.

In most cases, an employer will not be expected to carry out a re-evaluation of an earlier warning and Employment Tribunals should be expected to take the same approach.   A recent Employment Appeal Tribunal case involving the BBC  provides a useful reminder that there will be exceptional circumstances where a disciplinary manager is not entitled to take an earlier warning at face value –  for example, where the warning was not issued in good faith or where it was manifestly inappropriate.

In the BBC case, a Senior Producer had been issued with a final written warning for shouting at a colleague and for not prioritising a story about the birth of Prince George.    The Tribunal concluded that a written warning would have been justified, but that a final written warning was manifestly excessive.   When the Senior Producer was disciplined again the following year for further misconduct, the disciplinary manager relied on the earlier final written warning in reaching his decision to dismiss for gross misconduct.

So, what should the disciplinary manager have done?

The starting point is still to take a previous disciplinary sanction at face value – otherwise you would have to review and approve every live sanction before taking it into account, which would be unworkable.     You should, however, be alert to a suggestion by an employee that an earlier sanction is unsafe or unfair – ask the question “is there something about the earlier warning that shows it was issued in bad faith, without any real facts to support it or that that it plainly ought not to have been imposed?”.  Just because an employee is unhappy or dissatisfied with an earlier sanction will not be enough on its own to prevent you from relying on it, but you should consider carefully whether it means that you need to investigate further or simply not rely on the earlier sanction at all.

This case also underlines the importance in all disciplinary cases of the decision maker being clear, in their mind and in their outcome, as to which factors they have taken into account and why they have reached their conclusion.   In the BBC case it wasn’t clear and it is now heading back to the Tribunal to determine how much weight the dismissing manager placed on the manifestly inappropriate final written warning and therefore whether the dismissal was fair or not.