Unfair Dismissal: Expired Warnings & Serial Offenders

Added On: 6th February 2017

Unfair Dismissal: Expired Warnings & Serial Offenders

A lot of us have come across 'serial offenders' who seem to be able to behave perfectly acceptably whilst they are the subject of a valid disciplinary warning, but as soon as the warning expires they return to their old ways. This case, which was recently reported by DAC Beachcroft in their February Employment Matters newsletter, could potentially be very helpful in these kinds of situations.

The facts

Mr Stratford was employed by Auto Trail VR Ltd. His disciplinary record, spanning 13 years' employment, consisted of 17 items, the last two of which were a nine month warning for failure to make contact while off sick and a three month warning for using company machinery and time for preparing materials for personal purposes. As well as the 17 formal sanctions, managers had held numerous informal discussions with him about his conduct.

After the expiry of both of these warnings, Mr Stratford was seen with his mobile phone in his hand on the factory floor. This was "strictly prohibited" by his employer. At a disciplinary hearing, Mr Stratford put forward explanations and excuses for his actions. At the end of the hearing, the Production Manager, Mr Bristow, decided to dismiss Mr Stratford, with notice. Mr Bristow explained his reasoning for this in a letter:

Mr Stratford was aware of the correct procedure regarding emergency contact through the switchboard, and there was no reason why he should have had his phone on the factory floor. However, Mr Stratford was having problems at home, and taking into account the unfortunate circumstances, Mr Bristow understood why he had done so, and had decided not to dismiss him for gross misconduct.

Mr Stratford had deliberately decided to ignore the rules, and Mr Bristow therefore decided to issue a final written warning.

However, Mr Bristow said "I have had to consider whether you can learn from this process or whether we will be discussing yet another matter within a few months. This is the eighteenth time we have had to discuss your actions, for different reasons, on a formal basis. This is in addition to the informal conversations we have had on many occasions. You have given me no reason to believe that we will not be having a similar conversation in the near future. Whilst your actions may not always be intentional, you do not understand the consequences of your actions, and I do not believe this will change."

Mr Stratford claimed that he had been unfairly dismissed.

The employment judge held that the reason for Mr Stratford's dismissal was his conduct, this conduct consisting of his disciplinary history, and his employer's seeing no reason that this would change – "Mr Bristow had reached the end of his tether and enough was enough". Taking into account existing case law relating to expired warnings, the employment judge decided that unfair dismissal legislation allowed consideration of Mr Stratford's record, even though warnings had expired. This consideration had to be balanced against normal employment practice, which is that, once a warning has expired, the slate should be wiped clean. The employment judge concluded by saying, "Was the dismissal fair in all these circumstances. I unhesitatingly say that it was." Mr Stratford appealed.

The EAT upheld the employment tribunal's findings, stating that previous misconduct, the final warning given in respect of this misconduct, and the fact that the warning had expired at the date of the later misconduct, were all circumstances relevant to whether the employer had acted reasonably or unreasonably and to the equity and substantial merits of the case. The legislation does not prescribe that taking expired written warnings into account will necessarily render a dismissal unfair.

What does this mean for employers?

This is a useful case for employers who are dealing with serial offenders, showing a pragmatic approach by the tribunal and EAT to a situation where the employer had, with good reason, reached the end of its tether. Employers must, however, act with great caution when taking expired warnings into account. The general premise is that, when a warning has expired, the slate is wiped clean. Previous case law makes it clear that expired warnings cannot fairly be used to bump up a lesser warning to a dismissal. Mr Stratford's disciplinary history was fairly extreme, including informal discussions and warnings which had not expired. He was dismissed for his conduct over many years, in circumstances where the employer had good reason to believe that his overall conduct would not improve. It is also relevant that the offence was potentially gross misconduct, and was only not treated as such because the employer took his unfortunate personal circumstances into account.