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Topic: Disciplinary, capability and dismissal

letter confirming expiry of a warning
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Letter confirming expiry of a warning

Letter confirming expiry of a warning

It’s worth letting an employee know when a warning has expired so that they’re aware the disciplinary or performance management paperwork has been removed from their file in compliance with data protection obligations, but that you’ve kept a summary of the action and sanction as you might need it in the future.

Validity of warnings

The period of validity of a disciplinary or poor performance written or final written warning should appear in your disciplinary or capability procedure and you should also have set it out in the warning letter itself. The employee needs to be expressly told how long the warning will remain current. The non-statutory Acas guide, which accompanies the Acas Code of Practice on Disciplinary and Grievance Procedures, suggests that a first written warning may remain in force for six months and a final written warning might be valid for twelve months, or more in exceptional circumstances. So most written warnings have a six-month validity period and most final written warnings have a twelve-month one.

Time-expired warnings

Once a warning has expired, in order to comply with the General Data Protection Regulation (GDPR), you should then remove the disciplinary or performance management paperwork, including the warning itself, from the employee's personnel file and it should be permanently and securely destroyed. This is because one of the data protection principles states that personal data must not be kept (in a form which permits identification of the employee) for longer than is necessary for the purposes for which the personal data are processed. With this in mind, our Letter Confirming Expiry of a Warning notifies the employee that the period of validity of the warning has expired, and when it did so, and it advises them that, as a result, you've removed the relevant paperwork from their file and destroyed it.

Summary record

However, you can still retain a brief summary of the employee’s disciplinary or poor performance record comprising the disciplinary or performance management action and sanction, together with key dates, as it may still have some future relevance - see our Employee Disciplinary Record. Whilst the general rule is that, once a warning has expired, you can’t take it into account when determining a subsequent disciplinary sanction, this doesn’t mean expired warnings can never be taken into account. For example, if the employee’s later misconduct is sufficiently gross to justify dismissal, you can consider previous misconduct which is the subject of an expired warning to explain why you’ve decided to dismiss the employee in circumstances where you may have applied a less serious sanction to another equally culpable member of staff. Likewise, if the employee has a history of expired disciplinary warnings, this might be relevant in determining how you judge the current act of misconduct, e.g. it may justify jumping to a final written warning on the current occasion or imposing a longer warning validity period, subject to whether your disciplinary procedure allows for this. What you can’t normally do though is use an expired warning to elevate general misconduct into a dismissable offence. So our letter advises the employee that you’ve retained a brief summary record of the type of warning issued to them, the reasons for action being taken, the date of issue of the warning and the date of its expiry and any appeal lodged. It states that this record may have some relevance were the employee to commit any further acts of misconduct, or fail to meet required performance standards again, in the future, but without specifying how exactly you might use that information.

 

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