Warnings Before Dismissal
With the exception of some serious, or any gross, misconduct, most instances of dismissal will be preceded by previous warnings – typical descriptions could be a verbal, written, then final warning, or first, second, and final warning.
If dismissal is subsequently necessary (due to a successive instance of misconduct, not where misconduct warrants dismissal in its own right – an instance of serious or gross misconduct), an employee may seek to argue that the dismissal was unfair because the previous warnings were unfair: if the foundation that was the final warning was unstable, the dismissal that followed could be too.
The test for an employee to overcome in these instances is higher than the test for an employer to show when justifying a dismissal: in claims for unfair dismissal, where the dismissal is not disputed (e.g. not constructive dismissal cases) the employer has to show that the dismissal was fair in all the circumstances, and this requires them to show that they had satisfied the Burchell test:
- the fact of that belief; that the employer did believe it.
- that the employer had in his mind reasonable grounds upon which to sustain that belief.
- at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
The Burchell test is not objective, and the employer need only be satisfied on balance of probabilities.
If an employee wants to argue that a previous final warning was unwarranted, they would need to show that the final warning was “manifestly inappropriate” (in accordance with Davies v Sandwell MBC), a higher threshold than the employer’s Burchell test of reasonableness of a dismissal. If they can succeed in arguing that, the tribunal would then need to engage in a factual inquiry and detailed scrutiny of the circumstances in which that sanction was applied, and this could result in any dismissal that relied upon this warning as unfair.
In practice, unless an employer goes through the motions of a succession of warnings simply as a formality before dismissal, they should be able to defend any unfair dismissal claim. But given the final warning could nonetheless be open to challenge, erring on the side of caution could protect them in the longer-term – professional support in handling a disciplinary would typically only cost a few hundred pounds (or be included in the service for retained clients), an investment that could hardly be frivolous if it saves the employer an award for unfair dismissal. Employers can even minimise the fees by using the disciplinary guides provided below, and having their proposed actions reviewed by us, so while the risks of relying on a previous final warning to justify dismissal are low, having this confirmed by professionals offers employers even more certainty.