Can Expired Warnings be Taken into Account When Determining the Sanction for Misconduct?
In Stratford v Auto Trail VR Ltd, the Employment Appeal Tribunal (EAT) upheld a tribunal's decision that an employee was fairly dismissed.
This was after his employer took into account his history of expired warnings when deciding to dismiss for misconduct that would normally attract a final written warning.
The Facts
Mr Stratford had worked for Auto Trail since November 2001. He had a very poor disciplinary record consisting of 17 items. The last two items included a nine month warning for failing to make contact while off sick in December 2012, and a three month warning for using company time and machinery for personal purposes in January 2014.
Both warnings had expired by the time of the events which led to Mr Stratford's dismissal. On 15 October 2014, Mr Stratford was disciplined for having his mobile phone in his hand on the shop floor, which was 'strictly prohibited' by Auto Trail's employee handbook.
The conclusion of the manager who carried out the disciplinary hearing was that this offence was not one of gross misconduct and would attract a final written waning. However, as this was the 18th time that Mr Stratford has been the subject of formal action, in addition to many informal conversations, the manager felt that there was no reason to believe that there would not be a further conversation in future.
Mr Stratford was therefore dismissed. After an unsuccessful internal appeal, he brought a claim for unfair dismissal.
The Tribunal's Decision
The employment judge considered the cases of Diosynth v Thomson and Airbus v Webb. In Diosynth, the Court of Appeal had held that an expired warning could not be used so as to elevate misconduct into a dismissal offence where that conduct alone would not have justified dismissal in the absence of a live warning.
In Airbus, the Court of Appeal held that where the conduct in question constituted a dismissible offence, an employer could have regard to previous conduct when determining the correct sanction, regardless of the fact that it involved an expired warning.
On the facts of this case, the tribunal judge held that Auto Trail had been entitled to take into account Mr Stratford's disciplinary record and that his dismissal in the circumstances was fair.
Mr Stratford appealed to the EAT on the grounds that this was contrary to the Court of Appeal's judgments in Airbus and Diosynth. Where the misconduct in question did not justify the sanction of dismissal, it was not reasonable for the employer to rely upon expired warnings for previous misconduct as the principal reason for the dismissal.
The Employment Appeal Tribunal's Decision
The EAT upheld the tribunal's decision. The judge held that the wide wording of s98 of the Employment Rights Act 1996 (the obligation to act reasonably when deciding whether a particular act was sufficient to justify dismissal) meant that it was open to a tribunal to find that the dismissal in this case was fair.
The Judge noted that the previous misconduct, the fact that a final warning had been given in respect of it, and the fact that the final warning had expired by the date of the subsequent misconduct were all objective circumstances relevant to the questions of reasonableness, equity, merits and fairness.
Best Practice
As a general rule, an expired warning cannot be used so as to elevate misconduct which would not normally give rise to dismissal (in the absence of a live warning), into a dismissible offence. However, where the behaviour in question amounts to gross misconduct warranting dismissal, an employer will be entitled to take into account an expired warning when determining what sanction should be imposed.
Tribunals must have regard to the wide test in Section 98 and every case will turn on its own facts.
In this case, the judge noted that Mr Stratford's disciplinary record contained many more incidents, spanning the entire period of his employment, than that of the employee in Diosynth, whose record contained just one previous warning.
It is advisable for employers to ensure their disciplinary policy stipulates that the length of any warning may be extended in respect of a subsequent act of gross misconduct which is substantially the same. Furthermore, where examples of types of misconduct/gross misconduct are given, it should be made clear that these are guideline only. The provisions of an employer's disciplinary policy should be drawn to the attention of employees.