A common question we are often asked is whether a previous warning given in disciplinary proceedings which is lapsed can be taken into account when a second set of disciplinary proceedings are undertaken and the decision is to dismiss.
Generally the answer is no.
Recent case law however suggests that this may not be the case in all circumstances. The test of fairness and whether the employer acted reasonably is the overarching principle in determining whether a previous warning which has reached its expiry may be considered in subsequent disciplinary issues. The fact of previous misconduct, the fact that a warning was given in respect of it, and the fact that it has lapsed, are all objective circumstances which the employer may be entitled to take into account.
The following 3 cases demonstrate varying facts related to expired warnings – where they may or may not be taken into account.
The Court held that the employer, were not entitled to take into account the employee’s previous warning, which had expired several months earlier, in its decision to dismiss. The reason given was that it was considered that but for the previous warning, the employee would not have been dismissed based on the latter incident of misconduct alone.
In another case involving the employer, Airbus, the Court of Appeal held that the decision to dismiss, based in part on a previous warning which had expired only a matter of weeks earlier, was justified. In this case, the conduct which ultimately led to dismissal would have been a justified course of action based on its facts alone, irrespective of the previous expired warning. The employer were entitled to take into account the existence of the previous expired warning, in its decision to impose an outcome of dismissal.
A slightly different set of facts involved Mr Stratford who had a poor disciplinary record, with 17 previous warnings. Although none of these warnings were live at the time of dismissal, the Tribunal held that the employer were entitled to have regard to the disciplinary record of Mr Stratford as well as his general attitude, in its decision to dismiss and their belief that the behavior would not change. The Employment Appeal Tribunal supported this finding.
Essentially, if an employer takes the existence of a previous warning into account in considering the penalty for an already dismissible offence, this may be permissible. A situation where an employer uses an incident to elevate a previous minor infraction to a dismissible offence is unlikely to be regarded as reasonable.
Having clearly outlined disciplinary policies on the issue is important; for instance stating that subsequent incidences of a similar nature to that which initially resulted in a warning, may result in any time-limit on the warning being extended. This flexibility can ensure an employer is better equipped to deal with repeat offences of a like nature. As with many aspects of employment law, ensuring there is adequate documentation of what has occurred can make life much easier down the track.
If you’re considering disciplining a member of staff do take advice before to prevent a claim in the Employment Tribunal.
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