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Last year we were told emphatically that you can not take into account an expired disciplinary warning – to do so will render the dismissal unfair! Unfortunately things are a little less clear.

In that case the employee had been given a final written warning for misuse of Company time which expired after 12 months. One month after expiry the employee was caught watching TV during Company time with some colleagues. He was dismissed but his colleagues were given a final written warning due to their previous good conduct.

The Court of Appeal has now overturned that decision holding the dismissal fair stating that reliance upon an expired warning was a relevant factor in deciding whether or not the employer has acted reasonably and may in some circumstances mean the dismissal is unfair but not always! Thanks for the clearing things up – well, let me try!

Whilst lacking clarity to its decision, reading between the lines it seems to me that the issue of expired warnings can be taken into account when deciding whether dismissal is reasonable. In other words you must first reach a conclusion whether or not the misconduct on its own warrants dismissal (whether summarily or not).

Reasonable
If it does then you need to ask whether dismissal is reasonable in all the circumstances having regard matters such as aggravating features or points in mitigation. In the above case it seems that the Court accepted the explanation from the employer that the principal reason for dismissal was the misconduct (not the expired warning) and that the expired warning was only taken into account to determine if there were any factors which could justify a move away from dismissal.

Take advice before contemplating reliance on an expired warning, as it is quite clearly a fine dividing line between when it is acceptable to do so and when it is not.

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