Employment law help - references

[GinandGobbledegook]

If an employee had a warning on file at the time of leaving but that was over 2 years ago, are they still able to put that on a new employment reference?

I can't find anything that gives this indication. I'm a manager and I've been asked but I don't know.

They CAN put whatever they want but they absolutely shouldn’t put that down, the warning isn’t live anymore and shouldn’t be referenced at all.

Oh sorry I misread, the warning was live at the time they left so yes it could be put down but most employers don’t include things like that anymore, just use basic refs instead with employment dates etc.

They could do, yes, but I don’t see why they would. Formal warnings only tend to be disregarded for disciplinary purposes after 12 months (or whatever the duration is). They can be used for other purposes if appropriate.

Usually though you’d get a basic reference stating your job title, duties and dates of employment and little else - most companies these days are afraid to open themselves up to litigation by being anything but basic and factual.

In some professions and industries it’s compulsory to include any discipline record.

Yes they can - the main point is the reference should be factual/not subjective opinion and evidence-able. A statement to the effect that the employee had a live disciplinary warning for XYZ on file at the time of leaving is both IMO, and in some circumstances I would argue it would in fact be the duty of the previous employer to disclose it on a reference - e.g. I work in healthcare and if a clinician had a live warning for something to do with patient care and which required ongoing monitoring, we would be failing in our duty if they were able to go off to another hospital or trust without us mentioning it and potentially do the same thing again.

However I guess morally speaking an employer should/could make an assessment of whether it's necessary to mention it in the circumstances or whether they might want to simply not say anything at all about disciplinary record, and the new employer shouldn't necessarily automatically withdraw an offer of employment on the basis of the warning - particularly if they have other positive references that are more recent from a different employer...