We previously brought to your attention in our October 2016 newsletter the case of Trye v. UKME (UK Mission Enterprise Ltd). This looked at the extent to which an employer can take prior warnings issued to employees into account. The outcome of the case was confirmation that employers can take into account any live warning on the employee's personal file.
Another case, Stratford v. Auto Trail VR Ltd UKEAT/001/16, has now gone before the Employment Appeal Tribunal (EAT) looking at a similar issue. In Stratford the EAT had to consider whether an employer who took into account a history of expired warnings meant the employee's dismissal was unfair.
In Mr Stratford's case, during a career of 13 years with the company, he amassed 17 disciplinary offences. The last two in this long line of offences were issued for failing to make contact while off sick and using company machinery and time to prepare materials for personal purposes. His employer issued warnings on both occasions. These expired before the events leading up to Mr Stratford's dismissal.
A few months later Mr Stratford's line manager saw him holding his mobile phone on the shop floor. The company handbook strictly prohibited this. Following a disciplinary hearing, the company dismissed Mr Stratford with 12 weeks' pay in lieu of notice. The company explained in a letter that, in the circumstances, it did not consider his conduct to be gross misconduct. Therefore this particular offence only warranted a final written warning. However, since this was the eighteenth time that Mr Stratford had been the subject of formal action, the company could not believe that he could change his ways.
Mr Stratford lost his complaint of unfair dismissal at the employment tribunal. The employment tribunal found that the company fairly dismissed Mr Stratford for conduct consisting of his disciplinary history, that was not going to change. Mr Stratford appealed.
The EAT considered earlier relevant decisions, being Airbus Ltd v. Webb  EWCA Civ 49 and Diosynth Ltd v. Thomson  IRLR 284. In Airbus the Court of Appeal found the decision in Diosynth (see further details below) did not mean that an employer could never take spent warnings into account. The Court of Appeal focused on section 98(4) Employment Rights Act 1996 and held that whether an employer had acted reasonably or not would be judged by considering the objective circumstances. This included the previous misconduct, the sanction given and whether any warning was live or not at the time of the later misconduct. On this basis, the employment tribunal held the employer was entitled to take into account the employee's previous record and the manager's view that he would re-offend.
This is a helpful decision for employers. The EAT has confirmed that an employer need not ignore an employee's previous misconduct because a final written warning received for it has expired. Whether it is right to take into account an expired warning will depend on the facts of each case and the circumstances and purpose of taking the expired warning into account. The Court of Appeal held that an employee's earlier misconduct may be a relevant circumstance of the employer's later decision to dismiss. Further, an expired warning does not make the fact of the earlier misconduct in itself an irrelevant circumstance under section 98(4).
However, the difficulty comes in making the distinction between dismissing an employee for non-dismissible conduct relying on an expired warning, and deciding on the right sanction for dismissible misconduct in light of an expired warning for previous conduct. Diosynth held employers could not dismiss for non-dismissible offences relying on an expired warning. Airbus held employers may dismiss in relation to expired warnings based on the broader disciplinary history (however on the facts in Airbus, the employee's misconduct on its own was the principal reason for the dismissal). The EAT in Stratford aligned the case with Airbus. Therefore, it is worth recalling the recommendation given by the EAT in Airbus to carefully draft disciplinary procedures. Employers should draft these with "repeat offenders" in mind and allow for some flexibility for the exceptional circumstances when it may consider expired warnings.