UK: Unfair dismissal - importance of warnings

Employers should consider whether there are any serious concerns about the appropriateness of a live, final disciplinary warning before relying on it to dismiss for subsequent misconduct.

An employer's absence procedure specified that warnings would be given after a certain amount of absence at a meeting attended by a member of HR, which was responsible for auditing absence levels. By mistake, a final warning was given when the level of absence was insufficient, in the absence of a member of HR. The mistake was only discovered when the employee brought a tribunal claim following his subsequent dismissal for further absence.

The EAT ruled that, in view of the employer's size and resources, it should have complied with its internal procedural requirement for a member of HR to attend the meeting. Had it done so, the final warning would not have been issued. Giving a warning without this safeguard was manifestly inappropriate and the subsequent dismissal unfair. (Sarharkar v Northern Foods, EAT)

If a warning is manifestly inappropriate, the fact that the employee has not appealed it will be irrelevant to the fairness of the subsequent dismissal. This is all the more so where the reason for the failure to appeal did not involve any express or implied admission that the original allegations were true. (Davies v Sandwell MBC, EAT)