When an employer is faced with an employee who has repeatedly committed acts of misconduct (or under-performance), it is tempting to take previous misdemeanours/failings into consideration.
Warnings are expressed to remain active for a specified period of time e.g. 6 or 12 months. Once this time has passed, the warning will have expired.
The EAT has now confirmed that expired warnings must be ignored when considering any subsequent act of misconduct.
Mr Webb (W) was dismissed by his employer for watching television with his colleagues when he should have been working. None of his colleagues were dismissed. The employer claimed that W was dismissed because he had previously been given a final written warning for a similar act of misconduct, whereas his colleagues had clean disciplinary records.
W’s previous warning had been expressed to last for 12 months but had expired at the time of his dismissal.
The EAT confirmed that employers are, in fact, obliged (not merely entitled) to ignore expired warnings. In this case the fact that W’s expired warning was taken into account rendered his dismissal unfair.
What this means for employers
This case highlights the need to tailor warnings, particularly final warnings, to the particular circumstances.
The ACAS Code indicates that final warnings should normally remain active for 12 months. However, the EAT has indicated that this need not always be the case and that warnings remaining active for longer than 12 months may be issued if it is appropriate in the circumstances.
If, for example, the employer is being lenient by only giving the employee a warning, it may be appropriate to issue a warning which will remain “live” for e.g. 18 months. In light of this case, employers should consider amending their disciplinary procedures at the next opportunity to give themselves the flexibility to do this.
This case makes it clear that expired warnings must not only be disregarded for the purposes of “totting up” past offences but the employer may also not take it into account when considering, in a gross misconduct case, if there are any mitigating circumstances. If the employee would not have been dismissed but for the warning, the dismissal is likely to be unfair.