Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
How long have you worked there for?
OK thank you, XXXXX XXXXX it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you
No thank you, XXXXX XXXXX been preparing my answer this afternoon which you can find below.
A final written warning is issued when there has been a serious misconduct or performance issue which is not serious enough to justify instant dismissal. The warning would usually be for a specified period of time, during which it would be considered to remain ‘live’
In the event that further disciplinary action is necessary, when deciding on the appropriate penalty, the employer can take into account any live warning on the employee's personnel file, but may only take into account any expired warning if the circumstances justified dismissal anyway (meaning that regardless of past record, if the current issue would have resulted in dismissal anyway because it was serious enough, the employer can consider live and expired warnings, but if it was not serious for instant dismissal, the employer can only take into account current live warnings).
So live warnings can be taken into account by the employer even where they relate to a different type of conduct to the matter which is the subject of the current disciplinary proceedings. For example in the case of Auguste Noel Ltd v Curtis it was decided that it was undesirable to lay down any rules as to when such a previous warning should or should not be taken into account, but that "it is essentially a matter of balance, of doing what is fair and just".
What should also be considered by the employer is your length of service – 22 years is a very long time so the employer should not just rely on there being a further warning following a live warning to dismiss. They need to show that the two issues together were serious enough to tip the balance in favour of dismissal. But if the current warning was not something that would generally be considered worthy of a written or final warning then it is unlikely it could be used together with the live warning to justify dismissal.
Hope this clarifies your position?