What happens to an employee’s continuity of service if he or she is dismissed but reinstated on appeal?
Where an employee is dismissed but reinstated on appeal, should he or she be paid for the time between the dismissal and the successful appeal?
What should an employer take into account in deciding if, and what, disciplinary action is merited?
Is an employer obliged to impose the same disciplinary action where two employees break the same rule?
When an employee is issued with a formal warning, should the employee be required to sign and return a copy of the warning letter?
Can the time period for which a warning is active be "paused" when a woman goes on maternity leave and then "resumed" afterwards?
If an employee is absent without authorisation can the employer make a deduction from his or her pay?
Can an employer lawfully dismiss an employee whose absence is not authorised?
Can expired warnings be taken into account when deciding an appropriate penalty during subsequent disciplinary proceedings?
Where an employee is given a warning for a particular conduct issue, but then commits a different type of misconduct, can the employer move to the next stage of the disciplinary procedure to address that issue or must it start a separate procedure?
Do employers have the right to dismiss employees without notice?
Where an employer stipulates a probationary period for new employees must it wait until the end of this period before dismissing an unsatisfactory probationer?
If an employee resigns after disciplinary proceedings have been commenced should the employer continue the disciplinary procedure?
If an employer failed to follow its procedures for employees on probation would a dismissed probationer have any redress?
What are the possible consequences of failing to follow the Acas code of practice on disciplinary and grievance procedures?
Should an employer deal with an employee's poor performance through its disciplinary or capability procedure?
Is an employee entitled to be accompanied at a meeting to discuss poor performance?
What is a reasonable review period when setting targets for an employee who is underperforming?
For how long should warnings for poor performance remain "live"?
The starting point in determining for how long a warning for poor performance should remain "live" is to look at the employer's procedure. According to the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website), employers should set out the period for which warnings will remain active. The non-statutory Acas guide: discipline and grievances at work (PDF format, 898K) (on the Acas website), which accompanies the code, states that warnings should normally be live only for a set period, for example six months for a first written warning and 12 months for a final written warning. The guidance does not rule out the possibility of an unlimited warning, although it will not normally be appropriate to issue an open-ended warning in a poor performance situation. If further underperformance occurs during the currency of a warning, the employer is able to take the warning into account when deciding what penalty to impose on the next occasion.
In most cases, once a warning has expired, it should not be taken into account by the employer when it is deciding the outcome of future poor performance proceedings. However, in Airbus UK Ltd v Webb [2008] IRLR 309 CA, the Court of Appeal held that, in the context of a misconduct dismissal, employers may take into account expired warnings where this is not the principal reason for a subsequent dismissal (ie where the circumstances would have justified dismissal anyway). If, for example, an employee has a current final written warning for poor performance, and performance has not improved since the employer issued the warning, the employer might be considering dismissal (as it would be entitled to do as the employee's performance has not improved) or extending the final written warning if there are mitigating circumstances. On the basis of Airbus, it may take into account the previous expired warning in deciding that the mitigating circumstances do not warrant the lesser penalty.
XpertHR provides answers to more than 1,000 FAQs. But that's not all...
Request a demo today to find out how XpertHR can benefit your organisation
Do employers need to consider alternative work before dismissing an employee who is underperforming?