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Lapsed warnings
[ch 10: page 360]The Acas Guidance states that except in agreed special circumstances, warnings should be disregarded for disciplinary purposes after a fixed period of satisfactory performance or conduct. This is sometimes referred to as becoming “lapsed” or “spent”. That period should be agreed when the procedure is drawn up and set out clearly.
The Acas Guidance suggests up to six months for a First Written Warning and up to 12 months for a Final Warning, or more in “exceptional circumstances”.
It is normally unfair to take expired warnings into account when deciding whether to dismiss (Diosynth Limited v Thomson [2006] IRLR 284).
The only possible exception is where the offence could have justified summary dismissal even without taking the lapsed warning into account, as the following case demonstrates:
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 it was not unfair for the employer to exercise its discretion to give a lesser sanction of a Final Warning to the other employees because they had clean disciplinary records, and to dismiss Webb because he did not.
Airbus UK Limited v Webb [2008] IRLR 309 CA