It is common practice for a disciplinary policy to state that a warning will remain active for a specified period, normally between 6 and 12 months, after which time it will be removed from the employee's personnel file. The EAT decided in Airbus UK Limited v Webb that expired disciplinary warnings must be ignored when deciding on which disciplinary sanction to give an employee.

Mr Webb was issued with a final written warning after fraudulently misusing company time and equipment by washing his car when he should have been working. The warning was to remain on his personnel file for 12 months. Three weeks after the expiry of this warning Mr Webb was found with other staff members in a locker area watching television during working hours. Mr Webb was dismissed. The four other colleagues involved were given a final written warning - they were not dismissed because they had no prior disciplinary record.

The EAT found that the dismissal of Mr Webb was unfair. It was clear from the treatment of the other employees that he would not have been dismissed had the earlier warning not been taken into consideration. An employer is obliged to ignore expired disciplinary warnings in all circumstances.

The EAT provided the following helpful guidance for employers:

  • The purpose of giving warnings is to enable employees to know where they stand and what is expected of them. If a warning has expired, the expectation is that it is to be disregarded for all purposes (disciplinary sanctions, pay awards, selection for redundancy etc).
  • The ACAS Code of Practice on Disciplinary and Grievance Procedures recommends that first written warnings should remain active for 6 months and final written warnings for 12 months. It also states that warnings should not remain active indefinitely unless the employee's conduct is very serious, bordering on gross misconduct. The EAT highlighted that these are guidelines only and that the time limit for a warning may be longer than 12 months if the nature of the misconduct justifies it. It also suggested that an employer might be permitted to extend the period of a warning following a later similar act of misconduct.
  • Employers should take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances.
  • Disciplinary rules should be carefully drafted to allow flexibility for exceptional cases. For example, an employer should reserve the right to extend the duration of warnings in certain circumstances where the seriousness of the conduct justifies it.

Airbus UK Limited v Webb UKEAT/0453/06/DA

Note! Remember that although a warning may have expired, a copy of it should be kept for 2 years after it was issued to provide for compliance with the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Regulations require a transferor to supply the transferee with employee liability information, including details of any disciplinary action taken against an employee within the previous 2 years.