Blog: Hooray for common sense

Luke Menzies, Director and Specialist Employment Lawyer at Menzies Law

At the risk of a backlash from my colleagues for adopting a Daily Mail style title for this blog, I am genuinely pleased to see that common sense does indeed seem to have prevailed in the recent case of Stratford v Auto Trail VR Ltd, resulting in a clarification of the law of unfair dismissal where it relates to previous warnings.

Very briefly, in this case the employee had received 17 previous disciplinary warnings for failing to follow various shop floor rules.  When he was finally dismissed, for using his phone on the shop floor in breach of a clear ban, the employer did so because it felt that, given all the (expired) previous warnings, it could see no hope of him behaving himself sufficiently in the future.  Mr Stratford sued for unfair dismissal, claiming that this was an unlawful reliance on expired previous warnings but the ET and then the EAT both felt it was a fair dismissal.  It wasn’t the expired warnings that had led the employer to this conclusion but rather the overall history of his conduct.  For more details of the case, see our recent Newsflash.

Misconduct scenario

You will doubtless have come across several situations over the years where an employee receives a disciplinary warning for some serious misconduct and gets a stern ticking off, and as result he is fully aware that his action was completely unacceptable and should not be repeated.  But later, once the warning has expired, he does it again.

In starting a new disciplinary process, you feel strongly that, this time, he deserves dismissal, but there is the problem that the previous warning has now expired.  Are you required to pretend it didn’t happen?  If your disciplinary policy says that, after expiry, the warning “will be disregarded for disciplinary purposes”, what exactly does that mean?

No-nonsense approach

For many years I have advised employers that any employee who has committed a fairly serious act of misconduct but who is not being dismissed should, as part of their formal warning, be told in clear terms that what they did is completely unacceptable and won’t be tolerated again. (Normally this will be a final warning, for obvious reasons.)  I go on to say that, given this very clear order not to repeat the misconduct, if it does happen again then the employer should be in a strong position to dismiss on the next occasion, even if by then the (final) warning has expired.

I’ve always felt that, in such a scenario, the employer would be able to say that it was not (wrongly) relying on an expired warning to justify dismissal this time round, but instead relying on the new offence being serious enough in its own right for a dismissal to be justified because the employee had previously been told very firmly that the conduct wouldn’t be tolerated again.

Until now, there wasn’t a reported Tribunal case that clearly supported my long-held approach, even though I’ve always thought it was a perfectly reasonable approach.  I’m pleased that now the Stratford case appears to provide the sort of case law support I’ve been waiting for.

Similar case, similar good sense

It follows on from the case of Airbus v Webb a few years ago, which I’m particularly fond of because it is one of the two cases that I have successfully taken all the way up to the Court of Appeal.  I represented Airbus in a case where the claimant was dismissed for misconduct while some of his colleagues, who were also caught doing the same thing, were only given final warnings.  The reason for the difference in treatment was that the company had a discretionary policy of leniently allowing an employee who deserved dismissal with a final warning on the first occasion.  Mr Webb had already ‘used up’ his discretionary final warning a few years’ previously, and so now had to accept the (fully justified) dismissal this time around.  However, his colleagues had not used up their right to a final warning.  That explained the difference in treatment.

The Employment Tribunal could see the fairness in the dismissal, but was hamstrung by the law being very clear at that time that if an employer “takes account of” an expired final warning when deciding to dismiss then that’s unfair.  So we had to go to the EAT and then the Court of Appeal in order to get the judges to agree that the law needed adjusting here, so that the dismissal could be held to be fair.  It wasn’t a case of Mr Webb being treated unfairly, but rather it was his colleagues who were being treated leniently in comparison.  So it wasn’t an unfair ‘reliance’ on an expired warning, but rather that he no longer had the special dispensation to avoid dismissal since he’d previously used it up.

Conclusion

Both these reported cases show that there are certain circumstances in which an employer can be acting reasonably when taking into account someone’s (expired) disciplinary history, and that the orthodox approach of an expired warning being entirely ‘off limits’ is no longer correct in every case.  Of course, each case will require careful thought and good legal advice but, with that caveat, you need not be afraid to made the ‘right’ decision when you need to.

 

Luke Menzies

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Luke Menzies, Director and Specialist Employment Lawyer at Menzies Law