The rule of thumb with disciplinary warnings is that once they have expired they should not be taken into account in any future disciplinary procedures. But do the rules on the "totting up" of warnings mean they cannot be considered at all? This is what the Employment Appeal Tribunal (EAT) recently considered in the case of Stratford v Auto Trail VR Ltd.
Mr Stratford had been dismissed by his employer in October 2014. He had a poor disciplinary record and at the time of the dismissal he had an expired warning from 2012 and a second expired warning from early 2014. The reason for the dismissal was that Mr Stratford had been seen with his mobile phone on the shop floor, something that was described in the company handbook as strictly prohibited.
Following disciplinary proceedings Mr Stratford was told that he was not guilty of gross misconduct, but he was given a final written warning for ignoring the rules on mobile phones on the shop floor. However, under the heading "Trust and Confidence" the disciplining manager indicated that as this was the 18th time formal action had had to be taken as well as many informal discussions having taken place, he had no confidence that Mr Stratford could learn from this experience, or that they would not very shortly be having yet another similar discussion. Mr Stratford had also indicated he had not realised the matter was serious and had been late for the disciplinary hearing because he had gone to have a cigarette in case the hearing ran into his break. Mr Stratford was dismissed with 12 weeks' pay in lieu of notice.
At the Employment Tribunal the Employment Judge found the reason for the dismissal to be conduct which included the belief of the disciplinary manager that having regard to his previous record, Mr Stratford's behaviour could not change. He found the dismissal to be fair, the consideration of the previous disciplinary record (albeit all warnings having expired) resulting in a decision that fell within the band of reasonable responses for an employer.
Mr Stratford appealed to the EAT on the basis that it is not reasonable for an employer to rely on earlier conduct where warnings have expired to justify dismissal in a case where the conduct being considered did not in itself amount to gross misconduct. The EAT had to consider whether the employer had acted reasonably in treating the reason for dismissal (including the consideration of past conduct) as sufficient reason. They were of the view that there was no rule that conduct which led to expired warnings must be ignored, or that by taking it into account, a dismissal will be rendered unfair.
This is a useful case for employers dealing with a "serial offender". However, while it may seem pedantic, this is perhaps an example of the difference between taking into account expired warnings, and taking into account the conduct which led to those expired warnings. Without a doubt expired warnings cannot be "totted up" with a lessor sanction to result in a dismissal. However, the pattern of behaviour which lead to those warnings can be considered as part of the overall circumstances to be considered by the employer. In this case the pattern of behaviour was such that an improvement in conduct in the future was unlikely. That said, employers must always exercise caution when taking into account prior conduct issues.