26/01/2017

It has long been understood that once a warning has expired that it cannot be used against an employee later on to bolster a new case for dismissal.

To use an expired warning in a dismissal would mean there is no point in warnings expiring at all. If they can be resurrected the employee can never wipe the slate clean.

The Employment Appeal Tribunal (EAT) however has offered an alternative view where past warnings which have long expired, could form part of a fair and reasonable conduct dismissal.

A dismissal was considered to be fair in a recent EAT case which saw an employee with 17 past disciplinary sanctions, dismissed after yet another final written warning which in itself wouldn’t have resulted in dismissal.

The EAT clarified that use of expired warnings in dismissals has not been completely ruled out. Where an employer reasonably believes that the employee will do something else in the future, it can be reasonable for the employer to dismiss based on a current act and long history misconduct.

This case is useful for employers where staff have been disciplined for several small things and keep breaking the rules without any care for discipline in general. They cannot hide behind the expiration of a warning in order to get away with something new and claim “that has expired so you cant use that against me now”.

However, this doesn’t give free license to dismiss all repeat offenders. Employers should take care when giving written warnings in the first place and consider exactly what is appropriate in the circumstances.

If you need advice on how best to deal with any disciplinary matters or need advice on any employment-related issue contact Laura Franklin at Beswicks Legal on 01782 205000 or laura.franklin@beswicks.com.