Warnings in Bad Faith

If you are issuing warnings about employees’ behaviour, you need to know certain things about the way to do it properly – if you don’t comply with the law, you could be facing serious consequences. Find out what you need to know from our article.

Whether they are verbal, written or final, warnings are usually treated as the standard response to employee misconduct. A final warning is a signal to the employee that should they commit further misconduct within the period outlined in the warning, they will face a penalty, such as dismissal or demotion.

If a warning has been issued and is still considered ‘live’, then it can be used in making later decisions such as redundancy selection or the next stage of a disciplinary process. Most disciplinary procedures have a mechanism whereby the employee can appeal if they feel that the warning was not fair or properly issued.

The only instance in which an employer cannot refer back to previous warnings is where they were given in bad faith. This means that the issuing of the warning may have been intended to mislead and, in the words of Justice Lindsay “includes dishonesty and…some dealings which fall short of the standards of acceptable…behaviour observed by reasonable and experienced men”. The European Commission has defined it as “conduct which is not ‘in accordance with honest practices in industrial or commercial matters’.”

The main reason that employers are not allowed to refer back to previous warnings where they are given in bad faith is that this might give them the chance to engineer a redundancy or a disciplinary dismissal by creating dubious grounds leading up to it.

The issue of bad faith is an important factor in deciding whether a dismissal is fair or not. If an employer had a genuine belief that there were grounds for issuing the warning, even though that belief was objectively mistaken, then it is likely that the warning will be counted as being issued in good faith. However, a warning is likely to have been issued in bad faith if:

• the employer is fully aware that there are no grounds for the warning in the first place;

• there is a deliberate attempt to mislead the employee regarding their right of appeal or to block – – their access to the exercising of their right to appeal.

• the warning has been issued with the intention of covering up another employee’s misconduct or poor performance;

• the reason for the warning is connected to a protected characteristic of the employee;there is irrefutable evidence to show that the employer has already made up their mind about the guilt of the employee;

• the reason for the warning is to facilitate the later dismissal of the employee.

What should employers consider?

In the wake of the recent case of Way v Spectrum Property Care Limited, where an employee’s dismissal was counted as unfair because it relied on a warning issued in bad faith, employers should be aware that Employment Tribunals will now be taking a good look at the history of any disputed disciplinary process and in particular the warnings that have been issued previously. Employers should therefore take care when conducting a disciplinary process that relies upon previous warnings. Any question as to the validity of those warnings should be investigated and either confirmed or disproven. This will stand the employer in good stead as they will be able to show a tribunal that they have done all that is reasonably practicable to ensure the good faith of any previous warnings.

Employers should therefore remember to:

• keep records of the disciplinary process and the facts behind any previous steps in it;

• ensure that there is no suggestion in any correspondence that could be disclosed to a tribunal that there has been a decision made on the outcome of the disciplinary process before it has taken place;

• investigate fully any allegations or suggestions that there is bad faith or discriminatory intent on the part of anyone involved in the disciplinary process;

• ensure that the employee knows they have the right to appeal a warning and take no steps that could be construed as discouragement from taking up that right;

Employers should bear in mind that employees undergoing the disciplinary process, or their representatives, may be aware of the Way case and may try to undermine previous warnings if they think that there is any chance those warnings might have been issued in bad faith.

If such a challenge is raised, the employer should take all reasonable steps to investigate the allegation and determine whether or not the warning was issued in good or bad faith.

If the employer can satisfy themselves that there were good reasons to issue the warning, they can disregard any challenge to the earlier warning.

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