Newsflash: Unfair dismissal – You’ve been warned (again and again!)

Summary: Can expired warnings ever be taken into account when dismissing an employee?

Yes, sometimes, says the EAT in Stratford v Auto Trail VR Ltd available here.

Facts:  The employee, Mr Stratford started work for the employer, Auto Trail VR Ltd (Auto Trail), in November 2001. Mr Stratford had a poor disciplinary record. The last two disciplinary issues (out of a total of 17 offences) were (i) a warning for failing to make contact while off sick and (ii) a warning for using company machinery and time for personal purposes. Both of these warnings had expired by the time of the events for which Mr Stratford was dismissed.

In October 2014 Mr Stratford was seen with his mobile phone in his hand on the shop floor, which the employee handbook described as “strictly prohibited”. Mr Stratford was invited to a disciplinary hearing to discuss the allegation. He put forward various explanations and excuses but Auto Trail decided to dismiss him. Auto Trail found that Mr Stratford was not guilty of gross misconduct and confirmed he was being given a final written warning. However, Auto Trail went on to say that Mr Stratford had been given every chance and had given it no reason to believe that they would not be having a similar discussion in the future. Auto Trail concluded that Mr Stratford did not understand the consequences of his actions and it did not believe that this would change.  In light of this, Auto Trail decided to terminate Mr Stratford’s employment with pay in lieu of notice.

Mr Stratford brought an unfair dismissal claim at Tribunal.  The Tribunal dismissed his claim and Mr Stratford appealed.  The EAT dismissed the appeal.  The EAT agreed with the Tribunal that the wording of section 98(4) of the Employment Rights Act 1996 was sufficiently wide to allow some circumstances where an expired disciplinary warning could be taken into account in deciding to dismiss an employee. This wording allows for dismissal if, in all the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably in treating [the reason for dismissal] as a sufficient reason for dismissing the employee.  In the individual circumstances of Mr Stratford’s case it was open to Auto Trail to take this approach given the number of previous warnings and likelihood that Mr Stratford would not change in the future.

Comment:   This is a helpful decision for employers and a victory for common sense.  It means that employers can, in principle, take into account an employee’s expired disciplinary record when dismissing an employee. However, employers should be cautious before relying on this case, given the sheer number of offences here and the fact they covered the entire period of employment.

This is also a useful reminder for employers with regard to ensuring warning periods last an effective length of time in the first place. It is not contrary to the ACAS Code to recognise periods of unwarranted behaviour by employees and ensure periods reflect this appropriately:€œThere may be occasions where an employee’s conduct is satisfactory throughout the period the warning is in force, only to lapse very soon thereafter. Where a pattern emerges and/or there is evidence of abuse, the employee’s disciplinary record should be borne in mind in deciding how long any warning should last.”

Interestingly, the EAT’s decision was made possible by being able to rely on the case of Airbus UK Ltd v Webb (2008), which was successfully defended by our very own Luke Menzies all the way to the Court of Appeal!  So for a personal insight into the basis for this decision and its impact please contact Luke at luke@menzieslaw.co.uk or on 0117 325 0526.