Can an Employer rely on Previous Disciplinary Warnings?

This has been something which many employers have wondered for some time. An employee has received warnings in the past which have gone on their personnel records and eventually expired, yet can previous warnings, although expired, be relied upon when the same employee is later dismissed?

This was considered by the Employment Appeal Tribunal (EAT) in the case of Stratford v Auto Trail VR Ltd.

The Claimant had worked for the Respondent for around 14 years. During his employment he had been subjected to 17 formal disciplinary proceedings. After being found on his mobile phone on the shop floor, which was strictly prohibited according to the staff handbook, the Claimant was subjected to disciplinary proceedings and the decision was made to dismiss him.

Whilst the more recent incident in itself did not amount to gross misconduct itself, the Respondent sought to rely on the numerous disciplinary offences that had taken place previously which led the Respondent to believe the Claimant’s general conduct would not improve. However, the previous warnings on the Claimant’s record which the Respondent sought to rely on had in fact expired.

The case first went to the Employment Tribunal who found that that the dismissal was fair and that the Respondent was able to take into account previous disciplinary offences when deciding whether to dismiss the Claimant. The Claimant appealed to the Employment Appeals Tribunal (EAT).

The EAT considered, in the instance an employee is found guilty of misconduct, whether it is reasonable for an employer to rely on earlier instances of misconduct as the main reason for dismissal, even though those earlier warnings have in fact expired. After much deliberation, the EAT came to the conclusion that, based on the evidence that some incidents involved no formal action which subsequently meant there was no warning, it was indeed reasonable to take into account and further rely upon the previous disciplinary offences when dismissing.

Whilst this decision offers guidance to employers with nuisance employees, it is important to note that each case must be considered on its own facts and therefore must be treated with caution in order to avoid claims of unfair dismissal. Please contact a member of the employment team for specific and tailored advice.