Wiping the slate clean? Must employers discount expired warnings during subsequent disciplinary proceedings?

A recent case has raised the question whether an employer can take into account expired warnings when considering dismissal for misconduct.

The starting position is that there are limited circumstances in which it is possible to fairly consider expired warnings when deciding on the appropriate action in subsequent disciplinary proceedings. Formal warnings given to an employee are commonly expressed to remain 'live' or relevant for a specified period of time at which point the disciplinary record should be wiped clean. ACAS guidance encourages this treatment.

Employee Misconduct Expired Warnings Unfair Dismissal Employment Law Scotland

However, consider the following: what if an employee receives a warning, and then goes on to commit a second similar act of misconduct not long after the warning has expired? Does an employer have to ignore the events of the past due to the passage of time?

Previous cases in point

Recent case law suggests that expired warnings may be able to be taken into account as part of the overall circumstances under section 98(4) of the Employment Rights Act 1996 in considering whether a dismissal was fair or unfair.

In 2008, the case of Airbus Ltd v Webb considered a situation where a group of employees were found guilty of gross misconduct. Four of the employees were merely given final warnings while a fifth was dismissed based on the existence of a previous warning for a similar act of misconduct which had expired three weeks earlier. The Court of Appeal held that such a consideration was relevant and the dismissal was deemed to be fair, notwithstanding that the warning had expired.

Stratford – enough is enough?

The recent case of Stratford v Auto Trail VR Ltd (UKEAT/0116/16/JOJ) saw Mr Stratford raised a claim relating to a dismissal after he was seen with his mobile phone on the shop floor. Crucial to the decision was Mr Stratford's lengthy and poor disciplinary record which contained no less than 18 instances of varying degrees of misconduct. While this particular issue was not considered gross misconduct and there were no outstanding warnings, the employer took the view that enough was enough and terminated Mr Stratford's employment.

On appeal, it was argued that where an employee is guilty of misconduct falling short of gross misconduct which in itself does not justify dismissal, it is not reasonable for the employer to rely upon earlier expired instances of misconduct as the principal reason for dismissal.

The EAT dismissed the appeal in accordance with Webb. It was remarked that there is nothing contained in the relevant statutory provisions to suggest that past misconduct should be discounted and consequently, it was held to be open to the tribunal to find that a dismissal for misconduct is fair, even though the employer has taken account of the employee's previous similar misconduct which was the subject of an expired final 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 the decision to dismiss.

What does this mean for employers?

As ever, it is a matter of balance. On the one hand, if the employer has chosen to impose a time limited warning, it could potentially be argued that it would be unfair to allow the employer to consider matters that the employee believes to have been dealt with and expired. Conversely, if an employee has been previously disciplined for misconduct, it can be argued that it is not necessarily unfair for the employer to take the nature of the conduct itself into account on a later occasion if similar conduct is repeated.

Employers may be familiar with employees who "behave" for the duration of the warning period, but then fall into old ways of relatively low level misconduct once they know that their warning has expired. In situations such as these, this case may prove of assistance to employers who wish to take stronger action, potentially up to dismissal.

The key consideration remains whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee. Although this case has emphasised that there is no absolute rule that expired warnings cannot be taken into account by employers in the consideration of dismissal, it remains an area of fine margins.

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The small print: This blog is for information purposes only and should not be construed in any way as providing legal advice.