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The EAT rules in Stratford v Auto Trail VR Ltd that dismissal may be fair even if the employer takes into account an expired warning

When disciplining an employee managers often have to consider what, if any, weight should be given to earlier warnings. Employers often adopt a cautious approach, which is to ignore expired warnings in order to avoid the risk that the dismissal is later challenged as unfair.

In the recent case of Stratford v Auto Trail VR Ltd the Employment Appeal Tribunal (EAT) decided that the employee had been fairly dismissed even though the employer had taken into account expired warnings.

The Facts

Mr Stratford was accused of misconduct. It’s important to note that his employer did not consider his conduct sufficiently serious to classify it as gross misconduct. At the time of his dismissal there were no live warnings on his file. However, he had a poor and lengthy disciplinary record – at least 17 previous actions had been taken against him. His employer relied on the large number of previous warnings and informal actions and considered that given his previous history, it was very likely that he would repeat the misconduct. It therefore dismissed Mr Stratford with notice.

The EAT upheld the tribunal’s decision that the dismissal, in the circumstances, was fair. On the facts, the employer was entitled to refer to expired warnings.

The EAT also took the opportunity to review the case law and referred to the two main cases on this point – Diosynth Ltd v Thomson and Airbus Ltd v Webb. In Diosynth the Court held that the employee’s dismissal was unfair because the employer had relied on an expired warning in arriving at its decision to dismiss – in that case the expired warning was a determinative factor in the decision to dismiss. The Diosynth decision seemed to suggest that employers were obliged to ignore expired warnings for all purposes. The question of lapsed warnings was revisited in Airbus Ltd v Webb. In this case the Court of Appeal confirmed that a dismissal would be unfair where the employer relied on an expired warning as the principal reason to dismiss (as had been the case in Diosynth) but clarified that the decision in Diosynth did not mean that expired warnings could never be taken into account. The cases were distinguishable – in Diosynth the expired warning tipped the balance in favour of dismissal. The other factors taken together would not have justified dismissal. Whereas in Airbus, the employee’s misconduct on its own was the principal reason for the dismissal.

What does this decision mean for you?

The EAT has adopted a common sense approach to misconduct dismissals and confirmed that an expired warning is not an irrelevance when an employer comes to consider whether a dismissal is a reasonable decision in the circumstances.

Whilst it will still be unfair for an employer to rely solely on an expired warning as the main reason to dismiss, this decision means that employers can take expired warnings into account, especially where the employees past behaviour indicates he is likely to commit similar misconduct.

Steps to take

  • Review your disciplinary policy – if it states that expired warnings will be ignored it’s likely that departing from this may make a dismissal unfair – especially if the policy is contractual;
  • The prudent employer should address the issue of ‘repeat offenders’ in its disciplinary policy, the policy should set out what action can be taken if similar misconduct occurs;
  • Ideally, warnings need to be given in writing;
  • Seek specialist advice before making a decision to dismiss, you will need to assess the level of risk; and
  • Ensure that records (minutes of disciplinary meeting and dismissal letter) show how much weight has been given to the expired warning(s).