Must expired warnings always be disregarded when it comes to dismissal decisions?

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In Stratford v Auto Trail VR Ltd, the EAT upheld a decision that an employee had been fairly dismissed in circumstances where his employer, having decided that a disciplinary offence merited a final written warning, went on to dismiss the employee anyway in light of his previous history of expired disciplinary warnings.

Background   

The statutory test for fairness, once a potentially fair reason for dismissal has been established, is whether in the circumstances an employer acted reasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee and whether the dismissal is fair “in accordance with equity and the substantial merits of the case”

ACAS advice is that a disciplinary warning should have an expiry date and once that expiry date has passed the warning lapses and should not be taken into account in subsequent disciplinary proceedings – essentially, an employee’s disciplinary slate should be wiped clean.  However, Stratford v Auto Trail VR Ltd makes it clear that there may in fact be some circumstances where it could still be ‘reasonable’ for an employer to take expired warnings into account when deciding whether to dismiss.

Case facts

Mr Stratford had been employed by Auto Trail for 13 years, but had an appalling disciplinary record, with 17 previous disciplinary warnings to his name. The last two warnings were final written warnings: a nine-month warning for failing to make contact whilst off sick; and a subsequent three-month warning for using company machinery and time for personal purposes. Both of these warnings had expired when Mr Stratford was seen on the shop floor with his mobile phone, something that was “strictly prohibited” under company policy. At his subsequent disciplinary hearing, Mr Stratford put forward a number of mitigating explanations for his actions in relation to the phone. In light of these, the disciplining manager decided that the incident did not amount to gross misconduct, but instead warranted a final written warning. However, notwithstanding this, the manager went on to dismiss Mr Stratford.

In dismissing Mr Stratford, the manager confirmed that given his long history of expired warnings, it was clear to him that Mr Stratford had been given every chance to change, and that he was either unwilling, or unable, to do so. Therefore, the manager believed that it was inevitable that if Mr Stratford remained in employment, there would be further misconduct issues.  As a result, the manager decided to dismiss him with notice.

Mr Stratford brought unfair dismissal proceedings, arguing that his lapsed disciplinary warnings should not have been considered by the disciplining manager.

Employment tribunal decision

The employment tribunal held that notwithstanding the accepted usual practice of ‘wiping the slate clean’ once a disciplinary warning had expired, in the circumstances, Mr Stratford’s long history of previous expired warnings was a factor that could legitimately be considered when deciding whether or not to dismiss him. Mr Stratford appealed this decision.

EAT decision

The EAT dismissed Mr Stratford’s appeal. The EAT confirmed that, notwithstanding that Mr Stratford’s previous final written warning had expired by the time of the latest misconduct, his long history of misconduct and disciplinary warnings were relevant factors to consider when assessing whether or not Auto Trail had acted reasonably in dismissing him. The EAT agreed with the tribunal that the disciplining manager was entitled in the circumstances to decide that ‘enough was enough’.

In coming to its decision, the EAT considered two previous conflicting appeal court decisions concerning the issue of expired warnings - Diosynth Ltd v Thomson and Airbus UK Ltd v Webb

The 2006 case of Diosynth Ltd v Thomson, a decision of the Scottish Inner House of the Court of Session, 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.  Subsequently, in 2008, the English Court of Appeal held in the case of Airbus UK Ltd v Webb that expired warnings could be taken into account in certain limited circumstances. In that case Mr Webb and three others had all been found guilty of gross misconduct for unauthorised absence from work. An expired final warning on Mr Webb’s record was used to justify treating him differently for the purpose of disciplinary sanction. He was dismissed, whereas the others, who had no previous disciplinary record, were given final written warnings.

In Stratford, the EAT followed Airbus UK Ltd v Webb taking a wider view of the statutory test for fairness, which permitted the employer, in the circumstances, to take its employee’s previous extensive history of expired disciplinary warnings into account when deciding whether to dismiss.     

Comment

So where does this leave employers?  Although employers should certainly welcome this decision for its acknowledgement that expired warnings are not totally irrelevant when it comes to the ‘reasonableness’ of a dismissal, it may have limited practical application. The circumstances in Stratford, were pretty unusual, particularly the sheer number of previous disciplinary incidents, and the fact that they covered the entire period of employment.

Employers are best advised to always tread carefully in relation to expired disciplinary warnings. Clearly, it remains unfair for an employer to rely on an expired warning as the sole or primary reason for a dismissal. 

What this case does do is act as a helpful reminder to employers to ensure that they are issuing disciplinary warnings for an ‘effective’ length of time. Where a pattern emerges of an employee’s conduct remaining satisfactory during the period that a warning is current, only to slide very soon after expiry, then it is appropriate to take this into consideration when deciding how long a newly issued warning should last.

How can EEF Help?

Members can find further assistance in dealing with disciplinary issue on our website, click here.

We will also be looking at the potential impact of other recent employment law cases at our upcoming EEF Employment Law Update. For further details, or to book a place, see here.

Author

Principal Legal Adviser

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