Expiration of disciplinary warnings

It is common practice for a disciplinary policy to state that a warning will remain active for a specified period, normally between six and 12 months, after which time it will be removed from the employee's personnel file.

An employer can take a live disciplinary warning into account when deciding on an appropriate disciplinary sanction. What is not always clear, however, is whether an employer can take an expired disciplinary warning into account when deciding on a disciplinary penalty.

Airbus UK Limited v Webb

The leading case is Airbus UK Limited v Webb.

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 Employment Appeal Tribunal found that the dismissal of Mr Webb was unfair, but this was overturned by the Court of Appeal on the basis that Mr Webb had committed an act of misconduct for which dismissal was within the range of reasonable responses – regardless of the expired warning.

When deciding what disciplinary penalty is reasonable, an employer should not usually take into account expired warnings: they cannot be used on a ‘totting-up’ basis to justify dismissal
However, if the circumstances justify dismissal anyway, an expired warning (and the underlying misconduct) can be considered when deciding what disciplinary sanction to impose and whether to mitigate the penalty.

How long should a disciplinary warning last?

The ACAS Guide states that warnings should normally only be active for a set period. Most employers opt for six months for a first written warning and 12 months for a final written warning. It also recommends that these periods should be established clearly in the disciplinary policy.

In serious cases it may be appropriate to extend the standard period of warning. In exceptionally serious cases, or where there is a pattern of the employee’s conduct lapsing just after the expiry of warnings, it may be appropriate to consider an unlimited warning. The disciplinary policy should allow the active period of a warning to be extended if an employee’s conduct has not improved at the end of that period.

Keeping records

In line with data protection guidance, there should be clear procedures for handling spent disciplinary warnings. In the disciplinary policy (and in any warning letter) employees should be told how and where a warning will be stored and whether it will be removed entirely from their personnel file once it has expired.

In any event remember that although a warning may have expired, a copy of it should be kept for two 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 two years.