Misconduct is one of the five ‘potentially fair reasons’ for dismissal contained in the Employment Rights Act 1996. There are two ways in which dismissals for misconduct generally occur.

The first is where an employee commits a single act of gross misconduct. This is an act of serious misconduct which goes to the heart of the employment relationship. Examples are often listed in an employer’s disciplinary policy. They include conduct such as theft, fraud and violence. If an employee is found to have committed an act of gross misconduct following a disciplinary process then the sanction is usually termination without notice.

The second way is often referred to as a ‘totting-up’ dismissal – where an employee commits an act of misconduct which is ‘totted-up’ with an existing live warning (usually a final written warning) leading to dismissal with notice for misconduct. An example might be persistent wilful lateness, despite prior warnings.

Totting-up dismissals are a useful tool in HR’s toolkit. Here are some common questions which arise when dismissal is being considered on this basis:

  1. Do totted-up warnings need to be of the same character? 

Totting up warnings to a final sanction of dismissal is fairly straightforward where an employee keeps carrying out the same act of misconduct over and over again. There is a clear narrative linking each warning together.

The degree to which you can ‘flex’ warnings of a different character so that they can be totted-up together may be influenced by your disciplinary policy. Ideally, employers should include a clause which allows totted-up dismissals and which explicitly states that the misconduct does not need to be of the same character in order for warnings to be totted-up.

Although it’s handy to have policy wording to back you up on this, case law makes it clear that totted-up warnings do not necessarily need to relate to the same type of misconduct. In Auguste Noel Ltd v Curtis, it was stated that it is “essentially a matter of balance, of doing what is fair and just.”

  1. Do you need to look behind a previous warning?

A disciplinary officer contemplating a totting-up dismissal does not generally need to revisit the validity of earlier warnings. It is enough for the them to know that the warning is on file and that it is live. In Davies v Sandwell Metropolitan Borough Council the Employment Appeal Tribunal confirmed that an employer considering dismissal is not required to re-open the circumstances in which a live final written warning was given. The only requirements are that the disciplinary officer should be satisfied that:

  • it was issued in good faith;
  • there were grounds for imposing it; and
  • it wasn’t manifestly inappropriate.

It is important that the disciplinary officer takes the time to satisfy themselves of this, especially if the employee brings the matter up. However, a detailed forensic analysis of the previous decision is not required.

  1. Can you use an expired warning when totting-up?

Generally, the answer here must be ‘no’. Otherwise there is no relevance to a warning being stated to remain ‘live’ only for a certain period of time. Support for this position is found in the Court of Session’s judgment Diosynth Ltd v Thomson, where it was held that it was unfair for an employer to put a time limit on a warning and then, when it had expired, still take it into account as a determining factor in deciding to dismiss.

However, there is some case law support for reliance on expired warnings being fair in limited circumstances. In Airbus v Webb, the Court of Appeal held that an employer could take into account previous similar conduct even where a warning had expired. In this case, an expired warning was allowed to be taken into account when deciding that the employee should be dismissed for further, similar, conduct (which was, on its own, gross misconduct) whilst his colleagues who had committed the same offence (but had no previous warnings) should not. So, where the offence is one that, in any event, might warrant dismissal, then the employer can take the expired warning into account when deciding on the sanction.

Employers are urged to use their common-sense on this point. Provided your policy does not expressly state that expired warnings will never be taken into account, there is potential scope to consider them – but doing so should be the exception rather than the rule.

Key takeaways

  • Reflect on the above points and review disciplinary policies to check the business’s current position on totting-up dismissals. Make changes as necessary to allow the business the maximum amount of ‘flex’ when dealing with persistent misconduct.
  • Previous warnings being relied upon in a proposed totting-up dismissal should not be picked apart as a matter of course. However, employers should take the time to check that they were issued in good faith and for a valid reason.