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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual situation
you find yourself in. The information posted on this site is for general
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Question: |
Once a disciplinary
warning lapses, can it be relied upon in subsequent disciplinary
proceedings? |
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Answer: |
The
ACAS Code of Conduct states that disciplinary warnings should be disregarded
after a fixed period of time, normally not more than one year. In Diosynth Ltd v Thomson [2006] Mr
Thompson was given a written warning for a safety violation, which was to remain
on his record for 12 months. After the written warning had expired, there was
a fatal explosion at the plant and it emerged that Mr Thompson was one of the
people responsible. His employer dismissed him, taking into account the
previous warning as they thought him unlikely to improve despite the training
he had received. Mr
Thompson claimed unfair dismissal and the (Scottish) Court of Session agreed
with him. The expiry provision in the ACAS Code of Practice is there for a
good reason; an expired warning should not hang over an employee
indefinitely. In this particular instance the employers had said that they
would not have dismissed Mr Thompson if he had not received the earlier
warning. His dismissal was therefore unfair.
However,
if an employee repeats the misconduct for which he received a warning a
couple of years before, then when investigating the new allegation, the
employer could attach some weight to that fact when considering the disciplinary sanction that time
around. Last
reviewed: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated by
the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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