Expired written warnings

The EAT has upheld a decision that an employee was fairly dismissed when, having decided that a disciplinary offence merited a final written warning, the employer went on to dismiss the employee after considering his history of expired warnings and its belief that there would be future conduct issues.

Mr Stratford (claimant) started work in November 2001 for Auto Trail VR Ltd (respondent). The claimant had a poor disciplinary record. The claimant had in recent times received a 9-month disciplinary warning for failing to make contact while off sick in December 2012 and a 3-month warning for using company machinery and preparing materials for personal purposes in January 2014. Both of those warnings had expired.

On 15 October 2014 the claimant was seen with his mobile phone in his hand on the shop floor. That was something that the employee handbook described as ‘strictly prohibited’. There was a disciplinary hearing, which was the eighteenth time that the claimant’s behaviour had been the subject of formal action. On 27 October 2014, the claimant was dismissed by his line manager with 12 weeks’ pay in lieu of notice. The claimant presented an ET1 claiming unfair dismissal.

An ET concluded that the reason for the claimant’s dismissal was conduct and that it was within the band of reasonable responses applying Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and therefore, a fair dismissal. The claimant appealed.

The EAT (HHJ Shanks presiding) reviewed the leading decisions in Diosynth Ltd v Thomson [2006] IRLR 284 and of the Airbus UK Ltd v Webb [2008] IRLR 309, which provided authority on the treatment of spent warnings. In Webb the principal reason for dismissal was itself a matter of gross misconduct warranting dismissal, whereas in Diosynth the reason for dismissal was more the history, rather than the actual offence, which did not in itself amount to gross misconduct warranting dismissal. The EAT noted that Airbus case had considered the decision in Diosynth and, having done so, had laid down general propositions of law:

• the decision ultimately depends on the construction of the legislation, bearing in mind that the tort of unfair dismissal is entirely the creation of statute;
• the correct construction of section 98 of the ERA means that it is open to a tribunal to find that a dismissal for misconduct was fair, even though the employer, in its response to the reason for which the employee was dismissed, had 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 whether the employer acted reasonably or unreasonably and to the equity and the substantial merits of the case for the purposes of section 98(4) of the ERA. The legislation does not single out any particular circumstance as necessarily determinative of the questions of reasonableness, equity, merits or fairness.

On this basis, the EAT concluded that the ET had not erred. The respondent had been entitled to take into account the claimant’s previous record and the claimant’s manager’s prediction as to how the future was going to go when making its decision.

Click here for a copy of the judgment

Employment law advice for businesses and organisations

If you would like to discuss your employment situation, better understand your duty as an employer to collect sensitive data, or how to handle data collection post-GDPR then call us today on 03456 381381, or email your details to employment@ibblaw.co.uk.