The claimant in Stratford v Auto Trail VR Ltd had a poor disciplinary record, to say the least. The last two items in a list of 17 were a nine-month disciplinary warning for failing to make contact while off sick (in 2012) and a three-month warning for using company machinery and time for personal purposes (January 2014). Both warnings had expired by the time of the events that led to his dismissal.
In October 2014 the claimant was seen with a mobile phone on the shop floor – something that the employee handbook described as "strictly prohibited". There was a disciplinary hearing at the end of which a manager decided to dismiss the claimant for misconduct. Given his disciplinary record, the manager did not believe his conduct would improve.
The Tribunal hearing the unfair dismissal claim was faced with two conflicting Court of Appeal level cases – Diosynth v Thomson in 2006 and Airbus Ltd v Webb in 2008. In Diosynth the Court of Session held that an employer acted unreasonably in taking into account an expired written warning when deciding to dismiss. But according to the Court of Appeal in Airbus, this did not mean that spent warnings can never be taken into account. In Diosynth, the other factors taken together would not have justified dismissal without a live warning, whereas in Airbus the employee's misconduct on its own was the main reason for the dismissal.
The EAT in Stratford confirmed that the Tribunal had been correct to follow Webb. The circumstances were clearly very different to those in Diosynth – the claimant's disciplinary record was much longer (covering his entire employment) with many more incidents. In Diosynth, there was only one previous, expired, warning, and this was described as tipping the balance; in Stratford the expired warning was just one part of a whole record leading to dismissal.