In the recent case of Stratford v Auto Trail VR Limited UKEAT/0116/16, the Employment Appeal Tribunal (“EAT”) considered whether it was fair to dismiss an employee where the principal reason for the dismissal was the employee’s previous disciplinary record (including expired warnings) and the employer’s belief that the employee’s behaviour would not improve in the future.
Mr Stratford had been employed by Auto Trail VR Limited (“Auto Trail”) for almost 13 years, and in that time, he had been the subject of formal disciplinary action 17 times. The most recent disciplinary sanctions recorded on Mr Stratford’s file included a nine month warning for failing to notify the Company of his sickness absence (issued in December 2012) and a three month warning for using company equipment for personal purposes during work time (issued in January 2014).
In October 2014, Mr Stratford was again the subject of formal disciplinary action after he was spotted with his mobile phone on Auto Trail’s shop floor (such conduct was described in the employee handbook as “strictly prohibited”). By this time, the most recent warnings on Mr Stratford’s disciplinary file had expired.
In the decision letter, the disciplinary manager confirmed that having a mobile phone on the shop floor was not considered “gross misconduct” and that the sanction for this would be a final written warning. However, under the heading “Trust & Confidence”, it was confirmed that Mr Stratford would be dismissed (with a payment in lieu of notice) since he had now been the subject of formal disciplinary action on 18 different occasions and his conduct had been discussed informally on a number of other occasions. Further, the disciplinary manager was not convinced that Mr Stratford understood the consequences of his actions or that his behaviour would change in the future.
Mr Stratford brought a claim for unfair dismissal in the Employment Tribunal (“ET”). The ET considered the cases of Diosynth Limited v Thomson  IRLR 284 and Airbus Limited v Webb  EWCSA Civ 49before reaching the decision that Mr Stratford had been fairly dismissed. The ET held that Auto Trail was entitled to consider Mr Stratford’s disciplinary record and his general attitude to disciplinary action when deciding to dismiss him.
Mr Stratford appealed to the EAT arguing that it was not reasonable for Auto Trail to consider earlier disciplinary action as a principal reason for dismissal in circumstances where the warnings he had received had all expired. However, the EAT dismissed the appeal, finding that the Tribunal had taken the correct approach in reaching the decision that the dismissal was fair. The EAT also noted that this case could be distinguished from the Diosynth case (in which it was held that an employer could not rely on an expired written warning when deciding to dismiss for misconduct) because, in this case, Auto Trail considered several disciplinary incidents (including informal action) covering the entire period of the Claimant’s employment. In contrast, in the Diosynth case, there was just one previous expired warning that led to dismissal and the employee’s whole disciplinary record was not considered.
This case confirms that relying on previous misconduct and disciplinary records (including expired warnings) when deciding to dismiss an employee will not necessarily lead to a finding of unfair dismissal. However, great care needs to be taken if previous misconduct and disciplinary records are the principal reason for dismissal since each case will be decided on its facts and the employer will need to demonstrate that it has acted reasonably taking into account all the circumstances. To avoid the risks associated with relying on previous disciplinary records and expired warnings, ideally, employers should be able to justify any dismissal for another principal reason.
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