In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996.

Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most recent sanctions included a 9 month disciplinary warning in December 2012 and a three month warning in January 2014. The final straw came in October 2014 when the Claimant was spotted with his mobile phone in hand on the shop floor – “strictly prohibited” under the employee handbook.

The decision was taken by manager Mr Bristow to dismiss Mr Stratford, not as a result of the phone incident alone, for which he was issued a final written warning, but on the basis of its being his 18th formal offence, with the employer stating (seemingly with no little justification): “you have given me no reason to believe that we will not be having a similar conversation in the near future… you do not understand the consequences of your actions and I do not believe this will change”.  

At the time of the dismissal all prior warning periods had expired. The issue was therefore whether Mr Statford could be fairly dismissed for something short of gross misconduct even without any live warning then on file.

Instinctively you would say no but in the ET the Judge ruled: “It is absolutely plain that the Claimant’s disciplinary record and the belief that as a consequence of that record the Claimant would not improve were the reasons why Mr Bristow decided to dismiss. In my view Section 98(4) permits the consideration of that record. Those facts are to be put into the balance in applying section 98(4). Also to be put into the balance is of course normal employment practice that once a warning has expired then the slate should be wiped clean.”  On that basis, the dismissal was fair.  

The appeal argued that all previous disciplinary warnings had expired and as a result taking them into account in the decision to dismiss was simply wrong as a question of law.   In other words, said Mr Stratford, once a warning has expired it has to be treated for disciplinary purposes as if it had never existed, so the mobile phone incident should have been regarded in effect as a first offence.  [This was consistent with some prior authority, including the fabulously unjust decision in Malin –v- Bevan Ashford in 1995.  Mr Malin was given on 30 January a final warning dated 29 January to run “for 12 months from the date of this letter”.  On 29 January the following year, having no doubt counted down the days in the meantime, Mr Malin misbehaved again.  It was found that the final warning expired at midnight on 28 January (12 months from 29th), and therefore Mr Malin’s dismissal was unfair, all for the want of a handful of hours.]

The EAT disagreed. It could see no error in law in the ET decision having considered the Claimant’s previous record and the eminent sense of the manager’s prediction as to how the future was going to go if the Claimant were not dismissed.  “The fact of the previous misconduct, the fact that a final warning was given in respect of it and the fact that the final warning had expired at the date of the later misconduct would all be objective circumstances relevant to whether the employer acted reasonably or unreasonably and to the equity of the case and the substantial merits. 

Lessons for employers

This decision means that employers can in principle take into account an employee’s expired disciplinary record as part of the overall circumstances considered when dismissing an employee. However, that principle may be limited in its practical implementation. The decision in particular notes the sheer number of incidents here and the fact they covered the entire period of employment.  This was not a case where the claimant had one previous warning which had expired, or where his poor conduct over a period was unrepresentative of his overall service.

It must make sense that one of the key questions in considering reliance on a past warning is not just how long the warning was stated to last on its face but how long the message in it could be expected to remain in the mind of the employee. It would be a hard argument by the employee that the expiry of a warning legitimised acts of misconduct which as an issue of fact he knew full well were not acceptable to his employer.

This may also be a lesson to 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: There 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.