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Legal Update: Expired Warnings
Wednesday, 30 July 2008 11:51

David Greenhalgh of H2O Law LLP advises on the best practice when taking disciplinary action

The best advice until very recently was that employers should avoid taking expired warnings into account when deciding the disciplinary sanction for any future disciplinary action involving the same employee.

In the recent case of Airbus, the Court of Appeal determined that expired warnings can be taken into account when dismissing an employee if they both relate generally to the same compliant (in this case the misuse of company time). The employee in question, Mr W, had an expired final written warning on his file for washing his car in company time. One month after his written warning expired, Mr W and four other staff were caught watching television in a locker room when they were supposed to be working. Mr W was dismissed but his four colleagues were not. Mr W claimed that he had been unfairly dismissed as his expired warning had been (unfairly) taken into account in the decision to dismiss him. Mr W won his claim in the first instance, but the Court of Appeal overturned the decision and stated that Mr W had been fairly dismissed and that it was relevant for his employer to have considered the expired warning (which was for a similar offence, i.e. misuse of company time) when deciding the disciplinary sanction for the subsequent disciplinary offence.

  • TIP: Expired warning (or the reason for it) must not be treated as the principal reason for any future dismissal.
  • TIP: Do not take into account expired warnings where the offence which led to the expired warning took place a long time ago and/or was different in nature to the new offence. In other words, whilst relevant expired warnings do not need to be ignored, emphasis should be given to the act which led to the new disciplinary hearing.
  • TIP: If you take into account an expired warning when determining a future disciplinary sanction, take care to ensure that your decision letter focuses on the current offence and explains why the disciplinary sanction being levelled is appropriate. Whilst the expired warning can be mentioned in this letter, this should only be given second billing. Always seek legal advice if you are unsure as to the relevance of an expired warning before taking any decision to dismiss/discipline an employee.

  • If you have any queries about any of the matters raised in this article or any other employment law issue please contact David Greenhalgh at H2O Law LLP on 020 7405 4700.

Whilst H2O Law LLP makes every attempt to ensure the accuracy and reliability of the information contained in this article the information should not be relied upon as a substitute for formal legal advice. H2O Law LLP, its employees and agents will not be responsible for any loss, howsoever arising, from the use of or reliance upon this information.

© H2O Law LLP 2008
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