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Lapsed Warnings
The Acas guidance states that except in exceptional agreed circumstances, any disciplinary action taken should be disregarded for disciplinary purposes after a specified period of satisfactory performance or conduct. Employees should be told how long a warning will remain live and the disciplinary procedure should state that lapsed warnings will be disregarded.
It is normally unfair to rely on a lapsed warning when deciding to dismiss an employee (Diosynth Limited v Thomson [2006] IRLR 284), but there may be circumstances when the existence of a lapsed warning can be used to justify the reasonableness of a decision to dismiss. For example:
Mr Webb had been issued with a disciplinary warning for misconduct that expired around three weeks before he was seen with four colleagues watching TV in the locker room during working hours on the night shift. He was dismissed for gross misconduct, but his colleagues all received final warnings. The Court of Appeal said that the dismissal was fair. Dismissal was within the “band of reasonable responses” for all five employees: the employer was free to decide on the lesser sanction of a final warning for the other staff because they had clean disciplinary records, but to decide to dismiss Mr Webb because he did not.
Airbus UK Limited v Webb [2008] IRLR 309 CA
A number of other procedural defects can make a dismissal unfair. For more examples and guidance, see the LRD Booklet Disciplinary and Grievance Procedures, a practical guide for union reps.
A defective disciplinary hearing, for example, one where the employee has not had the opportunity to prepare a case, can sometimes be put right on appeal, as long as the person hearing the appeal had not been involved in the earlier stage (Byrne v BOC [1992] IRLR 505).
An appeal does not normally have to be a complete re-hearing of the case, but it must be comprehensive (Taylor v OCS Group Ltd [2006] EWCA Civ 702).
An appeal — especially if it is a re-hearing — can result in a more severe sanction — for example a Final Warning being converted into a dismissal, but only if dismissal would have been a reasonable outcome of the original hearing, applying the “band of reasonable responses” test.