The extent to which an employer may fairly rely upon a previous expired warning when deciding upon a disciplinary penalty has frequently caused difficulties. The latest guidance from the Employment Appeal Tribunal (‘EAT’) in Stratford v Auto Trail VR Ltd confirms that there is no absolute bar to an employer relying upon an expired warning in deciding to dismiss for misconduct, but once again emphasises the need for caution and that in deciding such an issue one must take into account the full circumstances of the case.
Mr Stratford was a capable and helpful employee but had a long history of 18 formal disciplinary warnings. All of these had expired when there was a further clear act of misconduct. The employer concluded that whilst the latest incident, in isolation, would not have justified dismissal Mr Stratford’s disciplinary record provided no reason to believe that there would not be a need for formal action in the future. Although the employer accepted that Mr Stratford’s actions were not always intentional he had not understood their consequences and there was no reason to believe that this would change. The employer therefore decided to dismiss with 12 weeks’ pay in lieu of notice.
Mr Stratford brought a claim for unfair dismissal. An Employment Tribunal, finding that the dismissal was fair, held that the employer had been entitled to take into account the disciplinary history in deciding that ‘enough was enough’.
Mr Stratford appeal to the EAT, arguing that it is not reasonable for an employer to rely on earlier misconduct and expired warnings as the principal reason for dismissal when the latest offence does not justify such a penalty. The EAT upheld the decision of the Tribunal. It concluded that there was nothing in the unfair dismissal provisions of the Employment Rights Act 1996 that prevented a Tribunal from finding that a dismissal that took into account an expired warning was unfair. The Employment Tribunal had therefore been entitled to find that the employer was, in the circumstances of the case, able to rely on the previous disciplinary history in reaching a conclusion that the employee’s behaviour would not change.
The EAT’s decision draws a distinction, which might be considered as artificial but nevertheless stands, between (1) using previous offences to directly convert conduct into a dismissible offence (which is unlawful) and (2) taking previous offences into account more broadly to conclude that there is a legitimate reason to dismiss (which might be permissible).
The lessons to be learned from this decision are that such dismissals can in limited circumstances be fair but that each case must be looked at very carefully on its own facts. Furthermore, the employer must take great care in drafting its conduct policy to put employees on notice that in certain, exceptional, cases expired warnings may be taken into account.
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