• Dismissal decided by reference to history of expired warnings and future expectations was fair: in the case of Stratford v Auto Trail VR Ltd, the dismissal of an employee was held to be fair where the employer had made clear that its decision was driven by the overall disciplinary record of the employee, including expired warnings, and its reasonable belief that there would be future conduct issues. The EAT decided that an expired warning could be taken into account as part of the overall circumstances which dictate whether an employer acted reasonably in dismissing the employee. In this case, the employee's long list of previous misconduct issues and recently expired warning for misconduct, were relevant matters and the employer had been entitled to consider them. Whilst helpful, it's important to note that this case does not provide authority that employers can dismiss solely on the basis of an expired warning. Previous case law has made it clear that it is not permissible to use an expired disciplinary warning as a justification for treating a non-dismissible offence as a dismissible offence, and the EAT decision does not challenge that finding. Employers should still remain cautious about how they interpret and use previous disciplinary records. Well-drafted disciplinary policies and comprehensive procedures are essential in ensuring that proper process is followed and will assist in demonstrating that a dismissal is fair. You can read our full report on the decision here.
  • Dismissal where the employer took into account previous episodes of misconduct which had not been treated as disciplinary matters was fair: in the case of NHS 24 v Pillar the EAT overturned a decision of the Employment Tribunal that a misconduct dismissal had been unfair on the ground that the investigation report contained details of past misconduct offences that had been dealt with by way of remedial training. Given that the Employment Tribunal had found the dismissing officer's decision to dismiss had fallen within the band of reasonable responses, it was perverse to say that the dismissal was unfair because the investigation report contained too much background information. There was a distinction to be made between: (i) relying on the past conduct as a principal reason determining the dismissal; and (ii) including the information in the investigation report on the basis that it was relevant background. It was accepted that it would be unfair for an employer to rely on an expired disciplinary warning when determining whether to dismiss an employer, since the expiry of the warning would have created an expectation that the conduct would not factor in a future decision to dismiss. However, simply taking the information about past conduct into account as a relevant background was permissible. You can read our full report on the decision here.
  • Dismissal fair despite failures to set out reasons for dismissing internal appeal and provide witness evidence explaining the appeal decision: in the case of Elmore v The Governors of Darland High School and another the EAT upheld an Employment Tribunal's decision that a capability dismissal was fair in circumstances where: (i) the appeal conclusion letter did not set out the reasons for rejecting the employee's appeal; and (ii) no member of the appeal panel gave witness evidence at the hearing of the unfair dismissal claim. In this case, the absence of reasons and witness evidence was not fatal to fairness. However, this decision hinged on the fact that the appeal was a simple re-hearing of the capability stage and it could be shown that the overall process followed by the employer was fair. Whilst it is standard practice for appeal letters to set out the reasons for dismissing an appeal, this case demonstrates that a failure to do so will not always mean the dismissal unfair. However, employers should be careful not take this as carte blanche to short circuit an appeal process and provide abbreviated appeal letters. Furthermore, employers should usually expect to call at least one member of an appeal panel to give evidence at a relevant hearing. You can read our full report on the decision here.