Employers may wish to review their disciplinary and capability policies, in particular whether and when warnings are stated to expire and in what circumstances expired warnings can be taken into account. In Stratford v Auto Trail VR Ltd, the EAT ruled that a dismissal for misconduct, which the employer had decided was not gross misconduct and merited only a final written warning, was fair given that the employer had taken into account the history of 17 expired warnings leading it to believe that there would be further misconduct.

The ruling seems to go further than previous case law, which suggested that the current instance of misconduct must justify dismissal by itself, and that expired warnings are relevant only in deciding whether to impose that sanction or not. The ruling may therefore be challenged. However, the case could be viewed as consistent with previous caselaw, given that the conduct itself arguably was within the category of gross misconduct (the conduct was 'strictly prohibited' by the employee handbook) and was only categorised as not gross misconduct after the employer took into account personal mitigating circumstances.

In any event, it will clearly assist an employer to establish fairness if its disciplinary or capability policy states when and for what purpose expired warnings may be taken into account. Ideally, there should also be discretion as to whether and when a warning does expire, so that this situation could be avoided for serial offenders.