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Update 97 - Can employers take expired disciplinary warnings into account?

ACAS guidance states that written warnings or final written warnings should have a shelf life of no more than 12 months. However, that is not an absolute rule. In some circumstances warnings of unlimited length would be reasonable (for example serious health and safety breaches).

What do I need to do?

There may be some scope for avoiding the problem of the expired warning by providing for a warning to remain in force indefinitely. In our view, there are circumstances in which an employer can say to an employee “if you ever do that again you will be dismissed”.

However, these circumstances are most likely to arise where gross misconduct has been established and the consequences of any repetition could be dire for the employer and/or its employees. Also, an indefinite warning would probably have to apply to one particular issue - it would not be reasonable to say “if you ever commit any further misconduct you will be dismissed”.

In exceptional circumstances, a well drafted and well reasoned disciplinary decision can help employers to avoid difficulties before Tribunals. It is on occasions like these that good legal advice can make all the difference. 

Update 28 - You may recall that some time ago, we sent our subscribers an update about a Scottish Court of Session case on the question of whether employers could take expired disciplinary warnings into account.