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 can 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 (Stratford v Auto Trail VR Ltd).

Facts 

Mr Stratford's (Claimant) employment with Auto Trail (Company) began in November 2001. He accumulated a poor disciplinary record totalling 17 items, as well as further informal incidents. The last two items on this long disciplinary record were a nine-month disciplinary warning for failing to make contact whilst off sick in December 2012 and a three-month warning in January 2014 for conducting personal business during working hours and using company machinery to do so.

Then, in October 2014, the Claimant was seen with his mobile phone in his hand on the shop floor, which was prohibited by the employee handbook. The October incident resulted in allegations of misconduct and a disciplinary investigation. During the course of the disciplinary process, the Claimant put forward various mitigating circumstances. The Company took these into account and ultimately decided that this specific offence did not amount to gross misconduct but warranted a final written warning.

However, the disciplinary outcome letter which communicated the final written warning to the Claimant also went on to say that the Company had to consider whether the Claimant would be in a similar position in a few months' time. The Company stated that, given this was the 18th occasion it had had to formally discuss the Claimant's conduct with him, it had little confidence that further disciplinary issues would not arise in the near future. The letter noted that the Claimant had been given every chance, but concluded that he did not understand the consequences of his actions and the Company did not believe that this would change. As such, the Company confirmed it had decided to terminate his employment with payment in lieu of notice.

The Claimant went on to bring a claim for unfair dismissal.

Decision

The Employment Tribunal rejected the claim, holding that the Claimant had been dismissed for conduct which took into account his long disciplinary record and the Company's belief that this would not improve in the future. The Claimant appealed, arguing that the Tribunal had made an error of law in finding that it was reasonable for an employer to have regard to earlier misconduct as the principal reason for dismissal where a warning associated with that earlier misconduct had expired.

The EAT dismissed the appeal. It considered previous case law on the issue of employers relying on previous warnings in disciplinary proceedings. This included Diosynth Ltd v Thomson where it was found that an employer was not entitled to take an expired disciplinary warning into account when deciding what sanction to impose for a new disciplinary offence. It also considered Airbus UK Ltd v Webb where an employer was found to have acted fairly in using an expired final warning to justify issuing a harsher sanction to the claimant than to three others who had been disciplined for similar offences.

Unlike the Airbus case, the act of misconduct committed by the Claimant was not sufficient to amount to gross misconduct, but nevertheless the EAT favoured the Court of Appeal's logic that section 98(4) of the Employment Rights Act 1996 is wide enough to cover an employee's earlier misconduct as a relevant circumstance of the employer's later decision to dismiss the employee.

The EAT decided that the Claimant's long history of misconduct and disciplinary warnings were relevant factors to consider when assessing whether or not the Company had acted reasonably in dismissing him. The EAT agreed with the Tribunal that the Company had been entitled in the circumstances to decide that "enough was enough".

Comment 

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. The Diosynth case 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.

However, the EAT were able to draw a distinction from this earlier case law by having regard to the Claimant's broader disciplinary history, as advocated in Airbus. As such, this case reiterates that expired warnings can be permissible in certain circumstances, particularly where they indicate that an employee has a tendency to commit misconduct of a similar nature, and so is likely to do so again in the future.

However, 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.

Stratford v Auto Trail VR Ltd