On several occasions the Courts have had to consider the extent to which an employer is entitled to take account of an expired warning when deciding whether to dismiss an employee.

In a Scottish case in 2006 it was held that the employer could not rely on an expired written warning as a determining factor in deciding to dismiss for misconduct. In this case the employee had previously received a final written warning for failing to follow a safety procedure. A few months after the expiry of the warning the employee (along with several colleagues) again failed to carry out the same procedure and a fatal explosion resulted.

In 2008 another case involved an employee who had been given a 12 month final written warning for misconduct. A few weeks after it expired, he and several colleagues were disciplined for being away from the workplace when they should have been working. The employee was dismissed although his colleagues were given final written warnings. According to the Court of Appeal and the Employment Appeal Tribunal, the law did not require that expired warnings should never be taken into account. As the employee’s misconduct on its own was sufficient to justify dismissal, it was reasonable for the employer to take into account the previous warning for the purpose of deciding whether to dismiss or to show leniency.

The Courts have suggested that the lesson for employers when giving warnings, particularly final warnings, may be to tailor them to the particular circumstances. Although final warnings should normally have a time limit of 12 months, according to the ACAS Code, this need not always be so. It was suggested that an employer may provide for the duration of a final written warning to be extended if there is a subsequent act of misconduct which is substantially the same as the misconduct for which the previous warning was given.

In the case of Stratford v Auto Trail VR Ltd, an employee’s disciplinary record had 17 entries but no live warnings at the time of the event which resulted in dismissal. The employee was found on the shop floor with his mobile phone in his hand, something that was strictly prohibited by the employer. The employer decided that by reason of certain mitigating circumstances, this breach of the rules fell short of being gross misconduct but that as this was the eighteenth time that the employee had been disciplined, his attitude and conduct were unlikely to change and that dismissal was appropriate. The Employment Tribunal and the Employment Appeal Tribunal agreed that the employer had been entitled to take account of its prediction as to the employer’s future conduct.

Despite the more recent of the above three cases, it is not easy to say with certainty when an employer will be justified in taking account of expired written warnings. The cases highlight the need for carefully drafted disciplinary policies and flexibility in the wording of written warnings, so as to cater for the problem of “repeat offenders”.

If you have any queries regarding dismissals and/or experienced warnings, please do not hesitate to contact your Dedicated Employment Solicitor or alternatively please call us on 01483 411 533 and we would be delighted to assist you.