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25th January 2017

Is a dismissal fair if the Employer takes into account historic expired warnings?

The question for the EAT

In Stratford v Auto Trail VR Ltd UKEAT/0116/16 the EAT had to determine whether it was fair for an employer to take into consideration historic expired warnings when deciding to terminate an employee’s position.

Employers will be aware that previous case law has indicated that when contemplating dismissal of an employee, an employer should not be allowed to rely solely upon an expired written warning as a determining factor in deciding to dismiss for misconduct. The employer should usually consider that the misconduct on its own was the principal reason for the dismissal, however may have the discretion to take into account previous misconduct which may be of relevance.

The facts

In this instance, Mr Stratford was an employee of approximately 12 years service. He had an extensive disciplinary history and in the last 2 in a list of 17 offences, had a nine-month warning for failing to make contact while off sick in December 2012 and a three-month warning for using company machinery and time to prepare materials for personal purposes in January 2014. At the time of his dismissal, there were no live warnings on Mr Stratford's file.

On or around 15th October 2014, the employee was seen with his mobile phone on the shop-floor, which was strictly prohibited in accordance with the Company’s Employee Handbook. Mr Stratford was subsequently taken through a disciplinary process and dismissed with notice in lieu on the following grounds:

  • The employee was aware of the correct procedure regarding the use of mobile phones and emergency contact and had ignored it on this occasion. The Employer concluded that this is an offence which would usually attract a final written warning and not gross misconduct.
  • However, despite various informal conversations, it was concluded that this was now the 18th time that Mr Statford had been subject to formal action. Whilst it was not viewed that Mr Stratford had always been intentional in his actions, it was concluded that he did not appear to appreciate the consequences of his actions and that his propensity to disregard this would not change, even if a last chance was provided.

Mr Statford’s appeal was unsuccessful and he sought to pursue a claim for unfair dismissal. The tribunal rejected the claim and Mr Statford appealed to the EAT.

The EAT dismissed the appeal and concluded:

  • It was open to the Tribunal to conclude that a dismissal for misconduct was fair, even if the rational for the dismissal took into account an expired warning.
  • The Tribunal is entitled to consider the fact of previous misconduct, that a final warning was given in respect of it and that the final warning had expired at the date of the later misconduct, in determining whether the employer acted reasonably or unreasonably.
  • The Tribunal had not erred in its judgment and the Employer had been entitled to accept the Employee's previous record and conclude that the employee’s actions may not change in the future.

Advice to Employers

The case provides an extension to the previous understanding of expired warnings and its application to disciplinary processes. As a result, there may be circumstances where if an employee has previously been disciplined for conduct which could have amounted to dismissal, it may be possible for an Employer to take into account a previous warning, even when this may have become expired.

*All information is correct at the time of publishing

Julie Duane

Napthens LLP – Employment Law Advocate

Julie is one of our Employment Law Specialists from Napthens Solicitors. Read more

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