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Wiping the slate clean

Is it reasonable for an employer to rely upon expired warnings when dismissing an employee for their conduct?

A recent Employment Appeal Tribunal case considered this point, reiterating the fine balance between the slate being wiped clean when a warning expires and an employer’s ability to consider all relevant circumstances in dismissing an employee.

Stratford v Auto Trail VR Limited

Mr Stratford worked for the company from November 2001 until October 2014. Throughout his employment with the company, Mr Stratford had a dubious disciplinary record with some 18 instances of misconduct. Mr Stratford was issued with a 9 month warning in December 2012 for failing to contact the company whilst sick and a 3 month warning in January 2014 for misusing the company’s machinery and time for personal purposes.

In October 2014 Mr Stratford was seen with his mobile phone on the shop floor, which was strictly prohibited by the company. At the time of this incident both of the earlier warnings had expired. At a disciplinary hearing, the company’s production manager took into account that Mr Stratford was having problems at home and that was the reason that he had his mobile phone with him. Taking this into account, he decided that Mr Stratford was not guilty of gross misconduct but nevertheless decided to dismiss Mr Stratford as this was the 18th incident where the Mr Stratford’s conduct had been formally discussed, in addition to other informal conversations. The production manager considered that there was no reason to believe they would not be having similar conversations in the near future. He also commented that Mr Stratford was late for his disciplinary hearing, having gone for a cigarette just in case the hearing overlapped with his morning break…

Mr Stratford brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal acknowledged that normal best practice is for the slate to be wiped clean once a warning had expired; however, the statutory test for unfair dismissal requires that any dismissal must be reasonable in all the circumstances of the case. The Employment Tribunal decided that the company had reached the end of its tether and determined that enough was enough and in the particular circumstances. The decision to dismiss fell within the band of reasonable responses available to a reasonable employer and the Employment Tribunal therefore dismissed Mr Stratford’s claim.

Mr Stratford appealed to the Employment Appeal Tribunal.

Decision

At the appeal, Mr Stratford’s representative argued that the decision of the Employment Tribunal was wrong as a matter of law as it is not reasonable for an employer to rely upon earlier misconduct as the principle reason for dismissal where any warning given in respect of that misconduct has expired.

The EAT considered the legal precedents in relation to this issue and, relying upon the Court of Appeal decision Airbus UK Limited v Webb, decided that there was no error of law. In the circumstances, it was reasonable to dismiss, taking account of Mr Stratford’s previous record, together with the offence of having his mobile phone on the shop floor. The EAT therefore dismissed Mr Stratford’s appeal.

Comment

Whilst this case reiterates the position that employers may be able to take account of an employee’s history of misconduct, including expired warnings, it does not provide employers with free reign to do so.

Case law in this area has been slightly inconsistent; however, decision suggest that whilst an employer can take into account expired warnings when dismissing an employee for an offence that could lead to dismissal in any event, it isn’t reasonable for an employer to rely on expired warnings in order to dismiss where the current misconduct wouldn’t ordinarily lead to dismissal. In other words, previous expired warnings can be a deciding factor where there has been a dismissible offence, but not used to turn innocuous conduct into a dismissible offence.

If you have any queries in relation to unfair dismissal, disciplinary issues or any other employment law/HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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