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Forget expired written warnings in dismissal cases

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The Employment Appeal Tribunal has ruled that expired written warnings can never be taken into account when deciding to dismiss someone for misconduct.

Four employees were found watching TV when not on a break, only one was dismissed for the misconduct and the only difference between the four was that he had received a written warning in the past, which had expired.

Mr Justice Elias said: “The purpose of giving warnings is to enable the employee to know where he stands and what is expected of him. If the warning is to expire, whether the language be that it is to be disregarded, ignored or excised from the record, we think that this would give rise to the expectation that this would be so for all purposes.”

He added that tribunals were “obliged, and not merely entitled, to ignore expired warnings” when considering cases of unfair dismissal.

But he also said there should be some flexibility and that employers should be able to tailor warnings to individual circumstances.

Although paragraph 24 of the ACAS Code of Practice recommends that written warnings should expire after 12 months, Mr Justice Elias said: “That need not always be so.

“There is in our view no reason why it should not be longer if the nature of the misconduct justifies it, and in particular if the imposition of a lesser penalty is an act of leniency. An employer might also be justified in extending the period of the warning with respect to a later act of gross misconduct which is the same or substantially the same as that for which the earlier final warning was given.

“We recognise that to some extent there is a tension between the flexibility allowed to employers to consider expired warnings and the complexity of the warning provisions prescribed by the ACAS Code.

“If employers are going to be denied the right to have regard to expired warnings in any circumstances, then they must be allowed reasonable flexibility to formulate their rules to allow for exceptional cases. This will inevitably make them more complex. Of course, they whatever the rules, they must always to be carefully drafted and clearly drawn to the attention of employees.”

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