Expired Disciplinary Warnings (Again!)
Email update 28
What’s happened?
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. That case appeared to be authority for the proposition that expired warnings can never be taken into account for any purpose.
However, the Court of Appeal in England has recently considered this question and has stopped short of saying that expired disciplinary warnings must always be disregarded as an absolute rule. The Court said that there may be some limited circumstances in which the misconduct that caused the previous, expired warning can be taken into account.
However the decision comes with a warning that employers cannot use expired warnings to justify dismissal on a ‘totting up’ basis. What employers might be able do is to consider the previous misconduct in weighing up whether to mitigate the penalty, although not (it would seem) to weigh up what the disciplinary offence is 'worth' in terms of penalty.
Not only does this judgment seem to create a rather blurred line between situations where expired warnings must be disregarded and situations where they might be marginally relevant, but (despite the Court’s protestations to the contrary) it leaves us with conflicting authorities either side of the border. Therefore, a House of Lords decision may be required to settle this matter for once and for all.
What do I need to do?
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).
Therefore, 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.
