January 31, 2017

Can Expired Warnings Be Taken Into Account When Deciding Whether to Dismiss?

In Stratford v Auto Trail VR Ltd UKEAT/0116/16, the Employment Appeal Tribunal (EAT) considered whether an employer could take into account expired warnings when deciding whether to dismiss an employee.

Mr Stratford held a poor disciplinary record containing 17 items, the last two items of which were expired warnings for breaches of company policy. After a further breach of company policy, his employer (Auto Trail) dismissed him with a payment of salary in lieu of notice. Whilst accepting that this last act did not amount to gross misconduct and thus only attracted a final written warning, Auto Trail took the decision to dismiss, highlighting that this was the 18th time Mr Stratford’s conduct had resulted in formal action and there was no reason to believe that a similar incident would not occur again.

Mr Stratford claimed unfair dismissal, alleging that it had been unreasonable for Auto Trail to take into account previous misconduct in relation to which warnings had expired. The EAT held that U.K. unfair dismissal legislation was sufficiently wide to permit the finding of a fair dismissal in such circumstances. In particular, the fact that (a) previous misconduct had occurred, (b) a warning had been given in respect of it, and (c) the warning had expired at the time of the later misconduct, were all objective circumstances relevant to whether the employer had acted reasonably. On this basis, the EAT found that Auto Trail had been entitled to take into account Mr Stratford’s prior misconduct, including his expired warnings, and his dismissal was therefore fair.

This case does not sit well with previous case law establishing that it is not permissible to use an expired warning to elevate a non-dismissible offence to a dismissible one. It will be interesting to see how it is interpreted in other cases.

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