The Court of Appeal has held, in Airbus v Webb, that an employer may take expired disciplinary warnings into account when deciding whether to dismiss an employee.
Mr Webb had been given a final written warning for misuse of company time, which was stated to last for 12 months. One month after the warning expired, he was caught watching TV during company time with some colleagues and was dismissed. His colleagues - who had not had a previous final warning - were not dismissed.
The Court of Appeal (overturning the ET and the EAT - see bulletin 15/2/07) held the dismissal was fair. Mummery LJ stated that reliance upon an expired warning was a relevant factor in deciding whether the employer has acted reasonably - and may in some circumstances mean the dismissal is unfair - but does not inevitably mean that it is unfair. David Richards J. added (para 86) that employers should not now expect to be able to rely on expired disciplinary warnings as a matter of course - it is the exception rather than the rule.
[Thanks to Luke Menzies of the EEF, instructed by the successful Appellant, for telling me about this decision.]