Contrary to what some employers seem to think, disciplinary procedures are supposed to help employees improve, not act as a stick to beat them with
Not surprisingly, therefore, workplace warnings can have a major impact on an employee’s working life in terms of advancement, promotion or pay, and can also be a key feature in redundancy selection criteria.
Iain Birrell, a solicitor in Thompsons Newcastle office, outlines the nature and purpose of disciplinary warnings and looks at how employers should use them.
Most employers have a written disciplinary procedure setting out a tariff of penalties according to the seriousness of the offence. These range from minor capability or conduct issues through to serious offences such as theft or fighting:
- informal warnings – first offences of low level seriousness
- verbal warning – first stage of formal sanction but still at the lower end
- written warning – increasing seriousness
- final written warning – last chance
ACAS, the Government’s Advisory, Conciliation and Arbitration Service, advises employers that:
- warnings should be recorded (even verbal warnings)
- they should state the nature of the problem and improvement needed from the worker
- they should state the consequences of failing to comply, such as further warnings or dismissal
- they should be disregarded for disciplinary purposes after a specified period of time.
Employers who intend imposing serious penalties for what might otherwise be considered a minor infraction must make that clear in their disciplinary procedure.
Similarly, if a practice was previously tolerated and the employer wants it to stop, then they need to make that clear to the workforce. Otherwise the warning will be unfair and may be grounds for constructive dismissal (see below). It will also be unfair if the employer did not follow a proper process.
Statutory disciplinary and dismissal procedure
Introduced in October 2004, the statutory disciplinary and dismissal procedure (DDP) provides a mandatory mechanism for resolving disputes, but within a framework that ensures only the most basic of procedural safeguards.
It stands to reason that a breach of the safeguards results in a sanction, but, confusingly, not all warnings are covered. The DDP only applies if the employer is thinking about dismissing someone, or taking “Relevant Disciplinary Action” (RDA).
RDA, amazingly, excludes warnings. So if the employer makes clear at the start of the process that dismissal is unlikely and only a warning is on the cards, then the DDP does not apply and the employee has no statutory right to the minimum procedures or the associated benefits.
And they can be worth having: they give a degree of control over the timing and location of meetings; they guarantee a right of appeal; they give an automatic right to be accompanied at meetings under the statutory procedure; and they require the meetings to be conducted in a way that allows the person to defend themselves.
There is some authority suggesting that employers should warn the employee as early as the step one letter if they are considering dismissal. For instance, in Alexander and Hatherley -v- Brigden Enterprises Ltd (2006, IRLR 422), the Employment Appeal Tribunal (EAT) said that: “… at step one the employee simply needs to be told that he is at risk of dismissal and why.”
If an employer does not give an early indication, then representatives should seek written confirmation about whether dismissal is a possible outcome.
If an employee has a warning on their records that has not expired, they are likely to receive a more serious one in the event of a second offence. But the warning has to be live.
That does not mean that warnings can be open-ended and remain on someone’s record indefinitely. ACAS recommends that they should be disregarded for disciplinary purposes after 12 months for a final written warning and six months for a less serious one.
And tribunals are prepared to enforce this rule. The Court of Session (the Scottish Court of Appeal) held in Diosynth -v- Thomson (2006, LELR 111) that expired warnings cannot be taken into account when deciding whether to dismiss an employee.
Airbus -v- Webb
The EAT agreed that this was the correct approach in Airbus UK -v- Webb (2007, weekly LELR 5), but left the door open for employers to undermine even this simple protection.
It said that if employers were going to be “denied the right to regard expired warnings in any circumstances then they must be allowed reasonable flexibility to formulate their rules to allow for exceptional cases which will inevitably make them more complex”.
It said that employers are entitled to extend the period of time before the warning expires where it was justified by the seriousness of the misconduct or where a warning was, in fact, an act of leniency.
It also suggested that employers might be justified in extending the period for a repeat offence for which an earlier final written warning had been given. The EAT warned that any rules must always be carefully drafted and brought to the attention of the employees.
The net effect of the Airbus decision may be to prompt employers to extend the lifespan of warnings generally thereby increasing the vulnerability of employees subject to them. This is to be resisted as the decision makes clear that such adjustments should be considered on a case by case basis and generally limited to exceptional circumstances.
It is important to note that the ACAS guidance deals with the expiry of warnings for disciplinary purposes. Expired warnings may generally be taken into account for other purposes such as redundancy selection, and it is common for redundancy selection criteria to refer to someone’s disciplinary history.
But employers still have to ensure that their decisions are balanced and reasonable.
Consider for instance who has the better disciplinary record: a longstanding employee with a perfect record since a final written warning 10 years ago; or one with no disciplinary history but with only five years’ continuous employment.
As the Gilbert and Sullivan song goes: “let the punishment fit the crime.” Employers have a wide range of options available to them once they have formed a reasonable belief in the guilt or incapability of an employee. This “band of reasonable responses” allows sanctions ranging from the harsh to lenient. But whatever sanction is chosen, it must be fair.
If the employer gives a warning disproportionate to the offence, this may be a breach of the implied duty of mutual trust and confidence, leading to a potential constructive dismissal situation (see below).
This can arise if one employee gets a harsher penalty than another for the same offence. This inconsistency links in to issues of proportionality and is a way in which an employee can seek redress.
However, it is important not to get too carried away with this potential line of defence. The two cases have to be very similar for the argument to succeed. Even simple differences such as one employee admitting guilt and the other denying it, will usually be enough to justify a disparity in treatment.
In Airbus UK -v- Webb, the EAT said that it was more important to consider the individual circumstances of the dismissal than to adopt a “tariff” approach of seeing whether the claimant had been treated differently from someone else.
If an employee feels that a warning is disproportionate or unfair, they should appeal in the first instance. If their appeal fails, however, there is little more they can do, except bring a claim of constructive dismissal on the basis that the implied duty of mutual trust and confidence has been breached.
This though is inevitably something of a gamble as it requires the employee to give up their job.