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Disciplining an employee when a previous warning is past its expiry date

Published 11 January 2018

Having to discipline the same worker some time later for exactly the same allegation is not always as straightforward as it seems.

An employer may be tempted to take the view that the employee has been warned, the outcome is inevitable and so to borrow Lord Alan Sugar’s (1) TV catchphrase 'you're fired!'

But be warned, such an approach is dangerous and can lead to an employee who is dismissed in such circumstances lodging a claim for unfair dismissal. And, the abolition of tribunal fees last year (2) has removed a significant barrier for employees wishing to pursue such a claim.

When disciplinary allegations against an employee are considered proven, there is always a range of options open to the employer.

Depending on the reason for the disciplinary action, the decision might be:

  • no action
  • a verbal warning
  • a written warning
  • a final warning
  • demotion
  • dismissal

If a formal warning is issued the rationale for doing so should be clearly explained to the employee. The outcome should also make it clear when the warning will expire.

The ACAS Code of Practice (3) states warnings should be recorded, but disregarded for disciplinary purposes after a specified period. It suggests 12 months for a final written warning and six months for other warnings.

It is certainly not unusual for an employee to commit another act of misconduct while a previous warning is still active. In such circumstances it is perfectly reasonable for that previous warning to be taken into consideration when deciding on the appropriate sanction.

But if an employee commits an act of misconduct after a previous warning has expired, the employer should not rely on it when deciding what action to take. Employment law has always appeared to be very clear on this.

In Diosynth Ltd v Thomson (2006) (4) , Mr Thomson received a 12-month final written warning for safety breaches. Four months after it expired he faced disciplinary action again, along with a number of colleagues, for the same safety breaches. This followed an explosion and a fatal accident at the chemical factory where he worked.

Mr Thomson was dismissed after his previous warning was taken into account. His colleagues were not sacked.

The Scottish Court of Session ruled that he had been unfairly dismissed. The Court made it clear that an employer would be acting unreasonably if it took into account an expired written warning when deciding a subsequent disciplinary outcome.

This ruling left employers in no doubt that they should not rely on expired warnings, as once it had expired - it has expired. As noted earlier this is backed by the ACAS Code.

However, in employment law a ruling will come along every now and again that makes you rethink what you thought you had always known.

This was certainly the case in the Employment Appeal Tribunal (EAT) ruling in Stratford v Autotrail VR Limited (2016) (5).

Mr Stafford had been disciplined 17 times previously. He was disciplined for an 18th time when he was caught with his mobile phone in his hand, an act of misconduct that breached company policy.

Mr Stafford was issued with a written warning, but his previous indiscretions were taken into account and he was dismissed. The EAT found that the employer’s decision to rely on the expired warnings was fair.

The ruling was based on the fact that section 98(4) of the Employment Rights Act 1996 (6) requires the tribunal to look at all relevant circumstances in deciding whether the employer acted reasonably in dismissing the employee. The EAT concluded that expired warnings were objective factors to be considered as part of the general question of what was reasonable.

The ruling means employers can consider expired warnings but only in exceptional circumstances.

While each case should be decided on its merits, conducting a fair and reasonable disciplinary process is always the best way to stay on the right side of employment law.

References

1.         The Apprentice - Lord Sugar - BBC One [Internet]. BBC. [cited 2018 Jan 10]. Available from: http://www.bbc.co.uk/programmes/profiles/3hDdWTFzsLy3lVCVtl0rxSg/lord-sugar

2.         Marsh S, Elgot J. Ministers vow to end employment tribunal fees after court defeat. The Guardian [Internet]. 2017 Jul 26 [cited 2018 Jan 10]; Available from: http://www.theguardian.com/money/2017/jul/26/union-supreme-court-fees-unfair-dismissal-claims

3.         Discipline and grievance - Acas Code of Practice [Internet]. 2009 [cited 2018 Jan 10]. Available from: http://www.acas.org.uk/index.aspx?articleid=2174

4.         Diosynth Limited v Thomson [Internet]. Personnel Today. 2006 [cited 2018 Jan 10]. Available from: https://www.personneltoday.com/hr/diosynth-limited-v-thomson/

5.         Expired warnings and unfair dismissal [Internet]. 2017 [cited 2018 Jan 10]. Available from: https://www.bristows.com/news-and-publications/articles/expired-warnings-and-unfair-dismissal/

6.         Participation E. Employment Rights Act 1996 [Internet]. [cited 2018 Jan 10]. Available from: https://www.legislation.gov.uk/ukpga/1996/18/section/98

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