Employer could rely on poor disciplinary history to dismiss, even though disciplinary warnings for previous misconduct had expired

An employer faced with an act of misconduct which did not justify dismissal had been entitled to dismiss based on the employee's prior disciplinary history and its view that things would not change.  The fact that disciplinary warnings issued in respect of the previous misconduct had expired did not make the dismissal unfair.   

Speedread

An employer had been entitled to dismiss an employee because of his disciplinary history and its view that things would not change. There is no rule that an employer, faced with an act of misconduct which does not justify dismissal, cannot rely on earlier misconduct to dismiss if the disciplinary warnings in respect of that earlier misconduct have expired. The test is whether the employer acted reasonably in treating its reason as a sufficient reason for dismissal. The fact of the previous misconduct, that a final warning was given in respect of it and that the final warning has expired at the date of the later misconduct will all be relevant. 

Facts

In Stratford v Auto Trail VR Ltd, Mr Stratford worked for Auto Trail for 13 years until his dismissal in October 2014. He had a poor disciplinary record and had received a total of 17 disciplinary warnings. The last two were a nine month warning in December 2012 for failing to make contact while off sick and a three month warning in January 2014 for using company machinery and time for preparing materials for personal purposes. 

On 15 October 2014, Mr Stratford was seen with his mobile phone in his hand on the factory floor. This was strictly prohibited by the employee handbook. Following a disciplinary hearing, Mr Bristow, the Production Manager, decided to dismiss Mr Stratford with 12 weeks’ pay in lieu of notice. He set out his reasoning in the dismissal letter as follows:

• Although Mr Stratford was aware of the correct procedures for emergency contact through the switchboard and despite there being no reason for him to have his phone on the factory floor, there were unfortunate circumstances. Taking these into account, the offence was not one of gross misconduct and would attract a final written warning. 
• However, in addition to many informal conversations, this was the 18th time that Mr Stratford’s behaviour had been the subject of formal action. While Mr Stratford had asked for one last chance, there was no reason to believe that there would not be a similar conversation in the near future. Whilst his actions may not always be intentional, Mr Stafford did not understand their consequences and it was not believed that this would change. 

After appealing unsuccessfully, Mr Stratford claimed unfair dismissal. The employment tribunal found that he had been dismissed because of his disciplinary history and the belief that this would not change. The employer had been entitled to have regard to Mr Stratford’s disciplinary record and his attitude to discipline in general and had been entitled to decide that enough was enough. In the circumstances, the dismissal was fair. 

Mr Stratford appealed. He argued that when an employee is guilty of misconduct falling short of gross misconduct which, in itself, does not justify the sanction of dismissal, it is not reasonable for the employer to rely upon earlier misconduct as the principal reason for dismissal where any warnings given in respect of that misconduct have ceased to have effect. He relied on previous case law for this proposition. 

Decision

The Employment Appeal Tribunal (EAT) disagreed. The Court of Appeal in Airbus UK Limited v Webb indicated that the test to be applied when considering fairness is the test set out in the legislation – whether in the circumstances the employer acted reasonably or unreasonably in treating its reason as a sufficient reason for dismissal. On a correct construction of the legislation, it is open to a tribunal to find that a dismissal for misconduct is fair, even though the employer, in response to the reason for which the employee was dismissed, has taken account of the employee’s previous similar misconduct, which was the subject of an expired warning. 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 in deciding to dismiss. The legislation does not single out any particular circumstance as necessarily determinative of the questions of reasonableness.

On this basis, the EAT concluded that the employer had been entitled to take into account the employee’s previous record, along with the current offence and the manager’s prediction as to how the future was going to go when making its decision. It had therefore been entitled to find that the dismissal was fair.

Implications 

This case makes clear that there is no general rule that an employer must, for all purposes and in all circumstances, ignore an employee’s previous misconduct because a final written warning received for it has expired. Employment tribunals assessing fairness will take all relevant factors into account when deciding whether an employer’s decision to dismiss is fair. The fact of the previous misconduct, that a final warning was given in respect of it and that the final warning has expired at the date of the later misconduct will all be relevant. In this case, the fact that there were so many prior disciplinary incidents, covering the whole of Mr Stratford's employment, meant that the employer was entitled to decide that “enough was enough”. 

Nevertheless, relying on conduct in respect of which a disciplinary warning has expired is risky and employers should always seek legal advice if considering this course of action.