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Warning: Can You Use It When It’s Out of Date?

9th February 2017

In a recent unfair dismissal case, the Employment Appeal Tribunal (“EAT”) had to decide whether previously expired disciplinary warnings could be taken into account when deciding whether it would be reasonable to dismiss.

This case was decided on the back on two conflicting Court of Appeal decisions on the same issue; they were each distinguished on their own facts. In the recent case of Stratford v Auto Trail VR Ltd, the EAT decided that an expired disciplinary warning could be taken into account in deciding to dismiss an employee.

In this case, Mr Stratford had a hefty disciplinary record of 17 incidents in less than 13 years. His most recent indiscretions had led to a three month disciplinary warning in January 2014 and before that a nine month warning in December 2012. When Mr Stratford was found with his mobile phone in hand on the shop floor, an act which (though not being one of gross misconduct) was “strictly prohibited” under the employee handbook, he was dismissed after following due procedure.

In deciding to dismiss, the employer considered the employee's disciplinary history of spent warnings and that this was to be his 18th formal offence and concluded that he was unlikely to improve. This case was distinguished on its particular facts which the ET held needed to be balanced against the normal employment practice that an expired warning should ‘wipe the slate clean’.

The EAT focussed on the legal test for unfair dismissal. It concluded that, it was sufficiently wide to allow some circumstances where an expired warning could be taken into account in deciding to dismiss and on the facts of this case, this was one such occasion.

It remains unclear in exactly which circumstances an expired disciplinary warning can be lawfully taken into account as the matter will be fact specific. In the absence of any further case law on this matter, here are our Top Tips for employers dealing with warnings:

  1. Allow flexibility in your disciplinary policy to cater for serial offenders;
  2. Ensure your warning periods last an effective length of time. You can consider past behaviour when deciding how long a warning should last;
  3. Draft the warning as wide as possible. State that any further misconduct (not just of the same kind) may lead to further disciplinary action.

Remember: the golden rule is that it will ordinarily be unfair to take an expired warning into account in dismissing an employee. However, if you have an unusual case, such as this one, seek legal advice before deciding to use a warning when it’s out of date.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.

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