Q Nine months ago we issued an employee with a second stage written warning for poor timekeeping, but failed to specify the duration of the warning.
Our disciplinary policy says warnings normally remain on file for at least six months. We’re investigating allegations of verbal abuse by the employee. If the allegations are upheld can we rely upon the previous warning?
A If you dismiss your employee and they claim unfair dismissal, an employment tribunal will have to decide whether you have acted as a reasonable employer throughout the disciplinary procedure leading up to dismissal.
If the verbal abuse carried out by the staff member is very serious or part of a sustained campaign, this may of course justify imposing a higher-level warning in the first instance. Verbal abuse, which amounts to unlawful discriminatory harassment, will often warrant dismissal in any event.
However, the tribunal will consider the Advisory Conciliation and Arbitration Service (Acas) Code of Practice on Disciplinary and Grievance Procedures, which suggests first written warnings should be disregarded after six months and final written warnings after 12 months. As you failed to specify the duration of the warning and your policy suggests these normally last just six months, it is advisable to proceed on the basis that the warning has expired.
The Court of Appeal recently held in Airbus v Webb (2008), that an employer who had taken an expired final written warning into account when deciding to dismiss an employee was, nevertheless, acting reasonably. The facts were unusual as the expired warning was substituted in place of dismissal, following an appeal by Mr Webb. This was a similar offence, committed only three weeks after the warning had expired and was an act of gross misconduct.
In certain circumstances, this decision confirms you may be able to take into account your employee’s previous disciplinary record in deciding any subsequent disciplinary sanction. However, expired warnings or those covering an issue unrelated to the dismissal, may be best left unused as you cannot fully rely on these old records bearing much weight in a tribunal.
Roger Tynan is an employment partner at Maclay Murray & Spens