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.