Can expired warnings be taken into account when deciding an appropriate penalty during subsequent disciplinary proceedings?

There are limited circumstances where it is possible to take expired warnings into account when deciding on the appropriate penalty in subsequent disciplinary proceedings. In Airbus UK Ltd v Webb [2008] IRLR 309 CA the Court of Appeal overturned the employment tribunal and Employment Appeal Tribunal (EAT) and held that there was no rule of law that a dismissal as a result of an expired warning must be unfair. The EAT had followed the approach of the Scottish Court of Session in Diosynth Ltd v Thomson [2006] IRLR 284 CS that an employer should not take into account an expired written warning when deciding the appropriate sanction for a subsequent disciplinary offence. In that case, the decision to dismiss the employee was found to be unfair because it was clear that the employee would not have been dismissed if the previous expired written warning had not been taken into account. However, in Airbus the employer had dismissed the employee primarily because of their misconduct, not because there was an expired warning. The extent to which the expired warning is taken into account by the employer will be a determining factor in assessing fairness. The Court of Appeal did specify that expired warnings should not be relied on as a matter of course.

Employers should also take into account data protection issues when dealing with expired disciplinary warnings. The Information Commissioner's Employment practices data protection code suggests that, where disciplinary procedures provide for warnings to expire, it should be made clear if the warning is to be removed entirely from the employee's personnel record or if it is simply to be disregarded in determining a future disciplinary penalty. If the former, the employer should put arrangements in place to ensure that deletion actually does takes place when the warning expires. While the code relates to the Data Protection Act 1998, rather than the General Data Protection Regulation (2016/679 EU) regime, it remains useful for employers, pending updated guidance from the Information Commissioner, as the underlying data protection principles remain the same.