If you are facing disciplinary action, your employer may be able to take into account any previous acts of misconduct, including where the earlier misconduct has not given rise to disciplinary proceedings.
Introduction
Misconduct is one of five potentially fair reasons for dismissing an employee. Your employer must show that conduct was the reason for dismissal and identify the conduct being relied upon. In assessing whether a dismissal was fair or unfair, an employment tribunal will consider whether your employer followed a fair procedure and whether they acted reasonably in treating your conduct as a sufficient reason for dismissal.
Whether there has been a reasonable investigation by the employer is a key test of fairness in misconduct dismissals. In terms of fairness, you must know the case against you, you must know that you are at risk of dismissal, you must be allowed to make representations, and you must be allowed a right of appeal.
For further information see also https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
Types Of Disciplinary Sanction
Acts of misconduct will not necessarily result in dismissal. There are different types of disciplinary sanction. Depending on the type and severity of your misconduct, your employer may issue a:
- Verbal warning;
- First written warning, or;
- Final written warning.
In the absence of gross misconduct (a serious act of misconduct entitling your employer to dismiss you without notice), dismissal for a first offence is likely to be unfair if you have not previously received any warnings. That said, you may be dismissed fairly where a less serious form of misconduct takes place following previous warnings. Information about your employer’s usual penalties for misconduct are likely to be set out in your employer’s disciplinary procedure and disciplinary rules. Your employer may also consider alternatives to dismissal, such as a demotion, transfer to another job, or loss of a future bonus.
Previous Misconduct
When deciding the appropriate penalty for an offence, your employer can take into account:
- any live warnings on your personnel file;
- a warning for a previous offence that has been imposed between the current offence taking place and the sanction for the current offence being decided.
The position with regard to expired warnings (and the underlying misconduct) is less clear cut. It is possible for your employer to have regard to such warnings where they do not then become the principal reason for any subsequent dismissal; in other words, where the circumstances would have justified dismissal anyway.
Live Warnings
Live warnings can be taken into account by your employer, even where they relate to a different type of conduct from the matter currently under consideration. The essential principle is that it is legitimate for your employer to rely on a final warning provided that it was issued in good faith, there were at least prima facie grounds for imposing it, and it was not manifestly inappropriate to have issued it. Whether you have appealed against a final warning will be one of the factors for an employment tribunal to take into account when they are considering whether it was reasonable for your employer to have dismissed you.
Where there is a final warning that is still subject to an undecided appeal at the time of your disciplinary proceedings, your employer should exercise caution. However, there is no rule that the warning must be ignored or that your employer could not dismiss you until the appeal is determined.
Expired Warnings
It will depend on all the circumstances of the case, but it may be reasonable for your employer to take account of your previous similar misconduct, even if that is the subject of a final warning that has expired.
Prior Misconduct Where No Warning Given
Where an employer could have given a warning in respect of your previous misconduct but did not, they are not necessarily prevented from taking that misconduct into account in deciding how to deal with the later disciplinary offence.
As above, an employment tribunal must be satisfied that your dismissal was a reasonable sanction in all the circumstances. As well as considering previous warnings or similar incidents, the following circumstances may also be relevant:
- Your length of service.
- Your prior disciplinary record.
- Whether you admitted the offence and showed remorse.
- Whether you were provoked or acted under stress.
Lincs Law Employment Solicitors Can Help You
If you would like advice on your own situation please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitor
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