What can't be used in a disciplinary hearing?

AquaGirl

If you already have a warning to your name and you commit that same offence (let's say timekeeping) I understand the employer can refer to that original warning if you persist in committing the same offence and your warning can be escalated.
However if you committed an offence and served the warning notice period and then a period of time passed by, let's say 5 years, and then committed the same offence again, can the employer use the original offence against you? I mean legally speaking in the sense of can they legally use that against you not literally can they mention it because the answer to the latter is of course yes.

It could be for anything, timekeeping, cleanliness, attitude be it general, to customers, patients, comments to or about individual staff members, efficiency as in speed you work at, any offence nothing specific.

Just a discussion i was involved in today at work and i'd like to know the correct standing on it.

Savvy_Sue

I'd refer to your contract: generally it says how long a warning stays on your record for, and once it's dropped off it's gone, as if it had never happened.

Mind you, I wouldn't expect an employer to necessarily forget, it will always be there in the back of their mind ...

AquaGirl

Savvy_Sue wrote: »

I'd refer to your contract: generally it says how long a warning stays on your record for, and once it's dropped off it's gone, as if it had never happened.

Mind you, I wouldn't expect an employer to necessarily forget, it will always be there in the back of their mind ...

Oh of course, i don't dispute.

I'm talking about when the warning period has been long since served. Let's say it's on your file for 12 months and 60 months have passed by, so it's long since gone.
I know it'll be in the back of their mind, i know the employer wont forget, but can they say you did the same XYZ on such & such a date which you got a warning for & you're doing it again so you've not learned and basically use it against you that way.
So say you got a written warning last time, they would just jump straight to say final warning because you "hadn't learned".

tommytynan123

http://www.xperthr.co.uk/faq/can-expired-warnings-be-taken-into-account-when-deciding-an-appropriate-penalty-during-subsequent-disciplinary-proceedings/70318/

http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2013/01/29/dontrelyonexpireddisciplinarywarnings-2008-03.aspx

ohreally

An expired warning (or as in this case, 17 previous warnings) can be taken into account as part of the overall circumstances when considering whether a dismissal is unfair. Stratford v Auto Trail VR Ltd [2016] UKEAT 0116

..........

Xbigman

Expired warnings can be taken into account. The specific instance I'm thinking of is a colleague who was always late who had a 1st written warning and then managed to turn up on time for 6 months until it expired. He then went back to his old habits. With an expired 1st written on his record he couldn't get a 2nd written but instead was issued a second 1st written warning with a 1 year expiry date and not the usual 6 months.
Clearly the expired warning was taken into account although not used to increase the level of the new one. Two appeals on this were lost.



Darren

sangie595

Xbigman wrote: »

Expired warnings can be taken into account. The specific instance I'm thinking of is a colleague who was always late who had a 1st written warning and then managed to turn up on time for 6 months until it expired. He then went back to his old habits. With an expired 1st written on his record he couldn't get a 2nd written but instead was issued a second 1st written warning with a 1 year expiry date and not the usual 6 months.
Clearly the expired warning was taken into account although not used to increase the level of the new one. Two appeals on this were lost.



Darren

I used to know someone who drove like that! I'd never get in a car with her any time after the oldest points dropped off her licence!

But I think one thing that people haven't mentioned is that it isn't just the length of a sanction, or the memory of one, to factor in. There is nothing to say that an employer cannot, for example, issue a final warning immediately, or even dismiss. So, for example, you might have been warned at the lowest level for your attitude to colleagues three years ago and that warning is off your record. But there is nothing in law that says the employer cannot today dismiss you for your attitude towards colleagues. Or issue any other level of warning. Disciplinary action does not have to start at the bottom and work up.

And it is cumulative too. So, for example, you got a final warning for your attitude to colleagues. I didn't dismiss you because I wasn't 100% sure I'd get away with it. But today I've checked the time clock and you've been late three times this month. So I've just started disciplinary proceedings again and I'm going to dismiss you this time.

That last point is the one that I'm always warning people about. It doesn't matter how squeaky clean someone is at work - if an employer is out to find something, there will always be something to find! And this is a common strategy for employers. Go straight to final on something almost but not quite good enough, then find something small as the final nail.

AquaGirl

sangie595 wrote: »

I used to know someone who drove like that! I'd never get in a car with her any time after the oldest points dropped off her licence!

But I think one thing that people haven't mentioned is that it isn't just the length of a sanction, or the memory of one, to factor in. There is nothing to say that an employer cannot, for example, issue a final warning immediately, or even dismiss. So, for example, you might have been warned at the lowest level for your attitude to colleagues three years ago and that warning is off your record. But there is nothing in law that says the employer cannot today dismiss you for your attitude towards colleagues. Or issue any other level of warning. Disciplinary action does not have to start at the bottom and work up.

And it is cumulative too. So, for example, you got a final warning for your attitude to colleagues. I didn't dismiss you because I wasn't 100% sure I'd get away with it. But today I've checked the time clock and you've been late three times this month. So I've just started disciplinary proceedings again and I'm going to dismiss you this time.

That last point is the one that I'm always warning people about. It doesn't matter how squeaky clean someone is at work - if an employer is out to find something, there will always be something to find! And this is a common strategy for employers. Go straight to final on something almost but not quite good enough, then find something small as the final nail.

Very true. Couldn't agree more. If your cards are marked then you've got to be beyond good but even that will likely only last so long.