One of our employees committed an offence at work two days after a previous warning expired for a similar misdemeanour. Is it lawful to take the old warnings into account? It’s only two days after the expiry of the warning but the hearing might not be able to be held for a couple of weeks, so it will really be 14-16 days after expiry before we can make any decision.

Whether or not an employer can take account of an expired warning will depend on the employee in question’s contract of employment, the warning letter issued by the employer, and on the company’s disciplinary procedure. If any of these materials stipulate expired warnings cannot be taken into account it will not be lawful for the employer to do so. If these materials allow for past warnings to be considered or if it is not expressly stipulated, then employers may consider expired warnings. However, expired warnings may only be considered when this is not the principal reason for any subsequent dismissal. In other words, when the circumstances justified dismissal anyway.

Employers may (and