In J P Stratford v Auto Trail VR Limited the Employment Appeal Tribunal (EAT) has upheld a tribunal decision that a dismissal was fair despite the employer relying on previous disciplinary warnings, all of which had expired.

S had a “chequered” employment history which involved 17 previous formal disciplinary warnings (as well as several informal ones) in 13 years. In October 2014 he was in trouble again for using his personal mobile on the shop floor in direct contravention of the employer’s staff handbook. At the disciplinary hearing, following mitigation from S, the employer initially downgraded the offence from gross misconduct to a final written warning. However, the employer then considered his previous employment history (undoubtedly not helped by the fact he turned up late for the hearing!) and concluded he had been given every chance to improve, he was not capable of changing and would in all likelihood offend again in the near future. As a result, trust and confidence had gone and he was dismissed on notice.

The tribunal found the dismissal to be fair, falling within a band of reasonable decisions available to the employer.

S appealed to the EAT stating that the employer was wrong to take account of previous expired warnings. The EAT concluded that the tribunal had not misdirected itself and held that when previous expired warnings were taken into consideration by employers in dismissing, this did not necessarily make the dismissal unfair but fell within circumstances to be considered by tribunals when looking at fairness.