Lapsed warnings

The Acas Guidance states that except in exceptional agreed circumstances, disciplinary action should be disregarded for disciplinary purposes after a fixed period of satisfactory performance or conduct (i.e. it should become “lapsed” or “spent”). Employees should be told how long a warning remains “live” and the disciplinary procedure should state that lapsed warnings will be disregarded.

It is normally unfair to rely on a lapsed warning to dismiss (Diosynth Limited v Thomson [2006] IRLR 284), but not always:

Mr Webb was seen with four colleagues watching TV in the locker room during working hours on the night shift. Unlike his colleagues, Webb had already been given one formal warning for misconduct that lapsed around three weeks before the TV incident. He was dismissed for gross misconduct, whereas his colleagues all got Final Warnings.

The Court of Appeal said Webb’s dismissal was fair. Dismissal in this case was within the “band of reasonable responses” for all five employees, said the court, but the employer was free to decide on the lesser sanction of a Final Warning for the other staff because they had clean disciplinary records, and to dismiss Webb because he did not.

Airbus UK Limited v Webb [2008] IRLR 309 CA

www.bailii.org/ew/cases/EWCA/Civ/2008/49.html