We are commonly asked by employers whether an employee's existing disciplinary sanction can be taken into account in subsequent disciplinary processes for unrelated events.

To illustrate, Joe Bloggs, a systems analyst with a local IT provider, currently has a written warning on his personnel record for persistent lateness; the warning is valid for 12 months. Although his time-keeping has since improved, Joe now faces disciplinary sanction for breaching the employer's internal policy on personal usage of the internet. Two issues of misconduct but, nonetheless separate and distinct.


Can the employer take into account Joe's written warning based on persistent lateness when considering what, if any, sanction to impose for breaches of the internal policy on internet usage?

The answer is "yes"!

Generally speaking, any live or current disciplinary sanction (issued for whatever reason) can be taken into account when considering what (if any) further sanction should be imposed, albeit under a different set of circumstances. Yet, as is typical in the employment law arena, not every answer is straightforward or clear cut.

Using our present illustration, how would the position alter if Joe's written warning for persistent lateness was actually given because of a personal falling-out with his line manager and not genuinely due to any lateness on his part?


Can the employer take that existing warning for lateness into account when there is a possibility the sanction was not given in good-faith?

Unsurprisingly, the answer is "no" and thankfully the legal position has been made clear by LJ Clarke in last month's UK Court of Appeal decision in Way v SPC Ltd [2015].

In December 2010, Mr W (the recruitment manager for a local property maintenance company) was issued a final written warning after an investigation and disciplinary process revealed that he had deliberately recruited a family member to fill a vacancy, contrary to the company's own policy on fair recruitment and the disclosure of personal relationships. The warning was to remain on his personnel file for 12 months. At that time, Mr W did not appeal the decision due to an unpleasant fallout with his line manager in which he was advised that to do so would almost certainly seal his fate and escalate his dismissal.

A few months later Mr W faced new allegations, this time for the inappropriate use of the company email. A new investigation revealed that he had circulated emails containing sexually explicit content to others in the workplace. A further disciplinary process was invoked in which Mr W was informed that if the allegations were proven, the company would take his existing written warning into account. Unsurprisingly, the seriousness of the conduct was sufficient to justify a final written warning. Yet, on the basis that he was already subject to a live warning (albeit for a different type of offence), the company decided to dismiss Mr W forthwith arguing that this decision was within the "band of reasonable responses" available.

Mr W lodged an appeal claiming that the existing warning should not have been taken into account in the new proceedings; he believed that the previous warning had been given in bad faith. At that time, his line manager had also been involved in the initial recruitment of W's family member (December 2010) in breach of the company's own internal policies on recruitment, and on the basis that Mr W wished to expose his own manager's involvement, an argument between the two had ensued. Mr W asserted that his previous warning was primarily based on his manager's personal dislike of him, and not based on any failure to abide by the company's policy on recruitment.

The company maintained its position that the disciplinary sanction given in both instances was well founded and his dismissal was upheld. Mr W filed a claim for unfair dismissal.

In the first instance, the Tribunal agreed with the employer: the company was entitled to have regard to the warning even if, in fact, it had resulted from bad faith and was based on a personal vendetta at the hands of W's line manager.

However, on appeal, the Court of Appeal disagreed and set the record straight. Any warning given in bad faith (informal or formal) is not to be taken into account when deciding whether there is, or was, a sufficient reason for dismissing an employee. An employer cannot possibly be seen as acting reasonably when taking into account a warning that is regarded as inappropriate and not genuine; to do so would not be in accordance with the principles of equity or the substantial merits of the case.

LJ Clarke openly commented that this case was yet another example of where an employer used a bad faith warning as an inappropriate short cut to dismissing an employee; such tactics must be avoided at all costs.

In light of this decision and taking our illustration into consideration, Joe's previous written warning for lateness should not be taken into account if there is even the remotest possibility that it was issued in bad faith. As such, any disciplinary sanction imposed for breaches of company policy on internet usage should not be based on the bad-faith warning issued for persistent lateness. To do so would not be a reasonable response available to the employer and contravene the principles of equity.

You may be wondering what impact this decision will have for Channel Island employers. In truth, the decision will only have relevance here if a local employer ever finds itself in a similar situation. Although the Islands each have their own employment laws, UK common law will be one of the first places a Tribunal will look to seek guidance.

Local employers need to be mindful of issuing too harsh a disciplinary sanction in circumstances where a lesser sanction would have been more appropriate. Using warnings in bad faith as a means of circumventing what would otherwise be long drawn-out administrative processes will now come under strict scrutiny by local Tribunals in light of the Way v SPC Ltd decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.