To what extent can an employer take prior warnings into account when considering misconduct?

When considering whether the process for dismissal is fair, the Employment Appeal Tribunal (EAT) in Tyre v UK Mission Enterprise Limited has decided that an employer can rely on an earlier written warning – regardless  of whether the warning was issued for a different form of misconduct.

The extent to which an employer can take prior warnings into account can be confusing. This case is a helpful reminder of the Tribunal’s approach to these cases.

If a final written warning for misconduct is on file (irrespective of the  reason for it)), any further misconduct is likely to lead to dismissal – unless the circumstances are exceptional. Further misconduct does not have to be serious enough in itself to warrant dismissal. And, even an expired final warning can be relevant when deciding whether a dismissal is reasonable.

However, employers should be mindful that this particular case concerned a final written warning. The decision of the Tribunal is therefore only likely to be relevant to cases where final written warnings have been given.

The case of Bandara v BBC also considered whether  it’s fair to take prior warnings into account.  In this case, the question was whether a final written warning could be relied on when considering dismissal, even though the existing warning was ’manifestly inappropriate’, and ‘should not have been imposed’ in the first place.

Generally, earlier warnings should be regarded as established background and not re-opened, unless there is something that demonstrates that it shouldn’t have been given (i.e. it is manifestly inappropriate).

Because the EAT decided that the warning was inappropriate and should not have been imposed, this case has been remitted back to the Employment Tribunal for further consideration. f. The EAT also held that it was difficult to see how the employer’s decision could be reasonable in the circumstances.   As a result, the BBC had failed to satisfy the ‘reasonableness’ test. This could impact employers’ approaches to dismissal processes in future and the reliance they place on final warnings.