I am having problems with an employee and I need to undertake a disciplinary hearing. I have warned him before, can I take account of a previous, current first written warning for poor performance when determining the appropriate sanction?

With regards disciplinary sanctions employers are generally expected to:-

  • adopt procedures that are designed primarily to help and encourage employees to improve rather than as a way of imposing a punishment
  • be impartial
  • impose a sanction that is reasonable and proportionate in the circumstances
  • act consistently

It is also best practice to consider the ACAS Code of Practice on disciplinary procedures (www.acas.org.uk).

When it comes to imposing a sanction that is reasonable and proportionate, you should consider the following factors:-

  • your disciplinary procedure and any guidelines provided in it about the relevant types of misconduct and levels of disciplinary action
  • any extenuating factors that might have a bearing on events
  • employee’s length of service and previous disciplinary record
  • any earlier examples of how similar matters of misconduct have been dealt with in the business in order to ensure consistency

Disciplinary sanctions short of dismissal which are disproportionate to the offence, or outside the range of reasonable responses, could expose you to the risk of a claim for constructive dismissal.

As to whether a previous, current warning for poor performance is relevant for the purposes of a sanction in relation to the subsequent misconduct will depend on the specific circumstances of the incident. It may be the case that the employee has been so unsatisfactory in different ways for the employer to issue one final warning across the board. Factors that will be relevant are likely to include:-

  • the terms under which the previous, first written warning or improvement notice was issued and whether the circumstances giving rise to the misconduct incident fall within the scope of improvement required
  • whether the previous incident was dealt with in accordance with a separate capability procedure, and the degree to which it is related to the employee’s culpability
  • the degree of difference between the circumstances giving rise to the first warning and those now being considered. A degree of similarity will tend to favour a more severe penalty. On the other hand, there may be some particular feature related to the conduct or the individual that may contextualise the earlier warning


Disciplinary sanctions can be daunting. It is always difficult to decide what action to take. As an employer provided you have undertaken a fair and reasonable disciplinary process that complies with any contract or staff handbook, you will be entitled to put in place any sanction that would be open to a reasonable employer. As any advice will need to be tailored to any one particular situation, as an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance should you need help with any disciplinary matters.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.