How long should a written warning be kept on an employee's file?Posted in : Seamus Says - Employment Law Discussion on 3 May 2019
Can you advise what is deemed to be a reasonable amount of time for a first formal written warning on an employee record? Is 12 months deemed excessive?
Seamus: Well, basically, there's no set timeframe that you should put down for your warnings. What we do generally look through is that LRA Code of Practice on disciplinary and grievances. And what they have laid out in there is, for verbal warnings, they put an example of six months down. And for written warnings, they put an example of 12 months down. And if anything occurs within that time, then you take further action on that. So, no, I don't think 12 months is excessive for a formal written warning on that.
I think just in addition to that, it's always important to look back at the contract of employment. Sometimes you'll have a handbook or a disciplinary policy and procedure, and it will set it usually within the timeframes that are applicable for the disciplinary and sanctions that are provided.
My experience, certainly, I don't think for a formal written warning, whether it's the first occasion or not, it's irrelevant to that. Twelve months is the norm as I would see it.
There are circumstances sometimes where employers, certainly at the other end of the scale, where they're taking a step back from dismissal and they may say at that point, "Well, look, rather than giving you a 12-month period here, we're going to extend it to 24 months". And then you look at the contract of employment and they won't have the power or the ability to do that. But ultimately, in those circumstances, an employee who has been given an extra life in terms of employment isn't really going to make a complaint about that.
So there are times where the employer does step outside of those realms, but really it should be in the contract of employment. And you should be looking at what the guidance is in the contract of employment for the penalty that's going to be applied and how long that's going to apply for.
Scott: I remember years ago when I worked for the Labour Relations Agency dealing with an employer where the union had negotiated a three-month warning. And so, you had all these guys who would work the system and they'd get up to a final warning, keep their nose clean for three months, and then the process would all start again. It was way too tight.
12 months seems reasonable for written warnings. Maybe six months for oral warnings, as it says in the Code, would be more reasonable.
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