Many employers will have faced a scenario whereby an employee was issued a time-limited warning following a disciplinary hearing, perhaps for an act of misconduct, which subsequently expired. But what should happen, in light of the initial warning, if the employee then later commits the same or similar offence?
Depending on the seriousness of the act in question, it may be appropriate to issue a less severe sanction than dismissal, such as a verbal, written, or final written warning. Such action should be clearly communicated to the employee in writing and state the length of time the warning will remain active. Usually, and as per the ACAS guide on discipline and grievances at work, this would be six months in the case of written warnings, and up to 12 months for a final written warning. However, it is not completely out of the question for warnings to be of unlimited duration, for example, if there is a history of an employee committing acts of misconduct just after warnings expire.
If an employee commits a further act of misconduct during the time that the warning is live, the starting position is that any live warnings can be taken into account in deciding what action to take in relation to the further act. If, following the expiry of a warning, the employee commits a further act of misconduct, case law suggests that the spent warning and misconduct can still potentially be taken into account. Ultimately, it will be a question as to whether the employee has acted reasonably or not and, consequently, for a Tribunal to determine whether the dismissal was fair. In doing so, it will apply the law surrounding unfair dismissal and consider the facts of the case.
On a related matter, should an expired warning be retained on the employee’s personnel file or removed altogether? Often, the letter issuing the warning will specify what is to happen to it. The law does not insist on the latter and it may not be advisable in any event. Employers may be better served retaining such records as they prove useful when deciding matters such as promotion and how to deal with references, and to ensure procedures are applied consistently. In any event, it is usually advisable for the employer to communicate to the employee what it will do with the warning when it expires.
If you are an employer facing issues such as the above, or any employment-law related matter, please don’t hesitate to contact a member of Buckles’ employment team.