Additional Holiday Entitlement for Workers

23 July 2007

Expired Disciplinary Warnings

Question

An employer gave his employee a final written warning for bullying a colleague. The disciplinary letter stated that the warning would remain on the employee’s record for a year. 17 months later a further incident of bullying occurs. Can the employer take account of the incident of 17 months ago as part of the background of events to the current situation and use it as a basis on which to dismiss the employee this time round?

Answer:

In this particular case, the employee’s previous disciplinary warning expired five months ago. It would not, therefore, be appropriate to refer to it in fresh disciplinary proceedings, even if the allegations are related. In fact, if a decision to dismiss an employee is based on a past history of expired warnings, the decision will be unfair on that basis alone.

The ACAS code of practice provides that all warnings, including final written warnings, should normally be disregarded for disciplinary purposes after a specific period. It is important to identify what the specific period of time is. In cases of minor disciplinary offences, six months is probably reasonable, whereas in cases of serious misconduct the warning could remain on the employee’s record for up to a year and in exceptional cases, even longer. However, a warning which remains hanging over an employee’s head for an indefinite period would not be consistent with good industrial relations practice.

There have been a number of legal cases on this point and the position has recently been clarified in the case of Webb v Airbus UK Ltd (2007). Once a disciplinary warning has expired it should be scrapped from the employee’s disciplinary record and care should be taken not to refer to it again in any further disciplinary proceedings. In fact, in the case of Webb, had reference to an expired disciplinary warning not been made, the dismissal would most likely have been fair. When deciding whether or not a dismissal is fair, generally speaking, a tribunal cannot substitute its own view for that of the employer’s. An employer only has to show that the decision to dismiss for misconduct fell within a ‘band of reasonable responses,’ that the decision was made after a fair and reasonable investigation and that the employer had a genuine belief in the misconduct. However, if irrelevant factors are taken into account it is open to a tribunal to decide that the decision to dismiss did not fall within the band of reasonable responses.

In any event, it is never a good idea to start a disciplinary procedure with the intention of dismissing. It is generally counterproductive and most tribunals are able to spot it. The following points should be bourn in mind when deciding on disciplinary action:

• Carry out a thorough investigation into the allegations;
• Do not take any irrelevant information such as expired warnings into account; • Make sure that the employee’s explanation for his/her actions are considered;
• Make a decision on the basis of the relevant allegations and the facts relevant to those allegations; and • If your decision is to issue a final written warning, you must specify the length of time that the warning will remain on the employee’s record for.

For more information please contact Amanda Okill, Solicitor.
 

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