some things just never go away

As if to prove that employment law is constantly changing the Court of Appeal has reversed a decision of the Employment Appeal Tribunal which prevented employers taking account of disciplinary warnings that had expired.

W was given a final written warning which would be removed from his file after 12 months. Some 13 months later, W was again accused of misconduct. Following an investigation, he was dismissed and an appeal against the dismissal was rejected. However, four other employees who were accused of the same misconduct were given final written warnings due to their previous good disciplinary records.

The employment tribunal found that the employer had taken an expired warning into account in deciding to dismiss and, as such, the dismissal. That was upheld on appeal to the EAT. The Court of Appeal took the view that there was no rule which required a previous spent warning to be ignored for all purposes and, that the relevance of the warning was simply part of the overall question of reasonableness.

Protecting your business - how this affects you.

This is a decision to be approached with some caution. It is not a “green light” for employers to take into account expired disciplinary warnings when deciding to dismiss. From reading the decision, it seems clear that an employer would still be on sticky ground if it used the expired warning to tip the balance in favour of a decision to dismiss. The best advice is to let expired warnings, like sleeping dogs, lie.