Forewarned is forearmed – the importance of disciplinary warnings

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Posted in:HR and Employment|May 3, 2013 | Join the mailing list

The Employment Appeal Tribunal has recently handed down its decision in the case of JJ Food Service Limited v Kefil.

The case involved a manager, Mr Kefil, who had 14 years’ service with his employer, JJ Food Service Limited. After a complaint in July 2010, Mr Kefil was informally warned about his bullying management style. In April 2011, he was dismissed, after a disciplinary
hearing, when a number of employees alleged he had mistreated them by threatening their job security and creating an intimidating environment.

The Employment Tribunal found Mr Kefil’s dismissal to be unfair because although there had been concerns about his management style in the past, for which he had been warned informally, he had not been formally warned that if he continued to manage in that
way he might be dismissed. Also he had not been given any management training to remedy the issues identified with his management style.

JJ Food Service appealed against the Employment Tribunal’s decision, alleging, amongst other things that the Tribunal’s decision was unreasonable given the facts of the case and Mr Kefil’s abuse of his position.

The Employment Appeal Tribunal dismissed the appeal on the basis that it was unreasonable to dismiss Mr Kefil without first giving him a warning, not just about what he was doing, but that he might be dismissed if he went on doing it.

Nigel Crebbin of Berg comments: "While you would expect a manager working at a senior level to appreciate that if he continues to behave inappropriately then the consequences could be very serious, the ACAS Code on disciplinary procedures clearly advises
that, except in cases of gross misconduct, dismissal for a misconduct offence is likely to be unfair if the employee has not previously received any formal disciplinary warnings. While a failure to follow the Code does not, in itself, make a dismissal unfair,
Employment Tribunals will take the Code into account when considering the question of fairness. Tribunals are also be able to adjust any awards made in relevant cases by up to 25% if there has been an unreasonable failure to comply with any provision of the
Code. It’s therefore best, as an employer, to get early advice on handling disciplinary issues in the workplace, especially if you are in doubt as to the process you need to follow or as to what would be a fair and reasonable outcome.

"The Kefil decision also serves as a timely reminder of the importance of having up-to-date policies in place for dealing with disciplinary issues at work. The Berg employment team can assist you in drawing up or reviewing your disciplinary procedure and
we also have considerable experience in delivering training to help managers have the confidence to handle disciplinary issues as and when they arise."

For more information, please contact Nigel Crebbin on 0161 833 9211 or by email to
nigelc@berg.co.uk.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal
advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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