Stratford v Auto Trail VR Ltd UKEAT/0116/16/JOJ

Where an act of misconduct does not in itself constitute gross misconduct, reliance upon earlier disciplinary offences as the principle reason for dismissal may be seen as fair.

The Claimant had been employed by the Defendant for almost 14 years. During this time, he had been subject to 17 different formal disciplinary proceedings. In October 2014 the Claimant was caught holding his mobile phone on the shop floor, which was "strictly prohibited" according to the employee handbook. A disciplinary hearing was held and the Defendant decided to dismiss the Claimant.

It was clear from the written reasons for dismissal that the Defendant did not class this action as gross misconduct. However, the cumulative effect of the numerous disciplinary offences had been taken into account and this lead the Defendant to believe that the Claimant's behaviour would not improve. It is important to note that by the date of the final incident, all the prior warnings issued to the Claimant had expired.

The ET found that the dismissal was fair and, in particular, that the employer was permitted to take past disciplinary action into consideration when deciding whether to dismiss an employee.

The Claimant appealed this decision. The question for the EAT was: where an employee is guilty of misconduct (which, in itself, does not justify a dismissal), is it reasonable for the employer to rely upon earlier misconduct as the principal reason for dismissal where any prior warnings have expired? The EAT found that it was reasonable to take into account and rely upon the previous record of the employee when dismissing.

However, this decision turned on the fact that there had been numerous incidents over the entire period of the Claimant's employment and that there was evidence that some incidents involved no formal action, which meant that there was no warning to be expired. If the circumstances had differed, and the Claimant's disciplinary record had not been so extensive, the EAT may have found differently.

Whilst this decision is helpful to employers, it should be treated with caution. The frequency of the offences and whether the employee's disciplinary record spans the duration of his/her employment should be considered carefully before relying on past instances of misconduct as a reason for dismissal.