Many of our readers will be well aware of the concept of warnings in an employment context. Whether handed out for disciplinary or performance related issues, warnings form a key part of an employer’s arsenal when deciding which sanction is appropriate.
But what happens when a live warning expires? Is it to be consigned to the ash heap of history and the employee left free to commit new or similar acts for which they have previously been disciplined for? Or can an employer take into account a history of expired warnings when considering whether to dismiss?
These questions were reflected on in the recent case of Stratford v Auto Trail VR Ltd UKEAT/0116/16 at the Employment Appeal Tribunal (the “EAT”).
The EAT in Stratford, as well as considering the case in question, took the opportunity to review it in the context of existing case law over the last decade. Let’s take a look at them here:-
1) Diosynth Ltd v Thomson  IRLR 284
In Diosynth, Mr Thomson was handed a 12 month warning for safety process failures. Soon after the warning had lapsed, a fatal explosion occurred. Mr Thomson was dismissed whereas his colleagues who had not received any warnings were not. Diosynth had made it clear that Mr Thomson would have kept his job but for the previous warning. The Court found that Mr Thomson had been unfairly dismissed as Diosynth should not have relied upon the expired warning to dismiss.
2) Airbus Ltd v Webb  EWCA Civ 49
Diosynth, which suggested that an employer was obliged to ignore expired warnings for all purposes when deliberating over which sanction to impose, was re-examined in the case of Airbus. The Claimant had been given a 12 month final written warning, and 3 weeks after it expired committed an act of gross misconduct.
Here, a distinction was found between Diosynth and Airbus with the dismissal found to be fair by the Court of Appeal. They confirmed that where the employee’s misconduct was the main reason for termination, it would not be unreasonable for an employer to have taken into account previous behaviour which had been the theme of a previous warning.
This decision can be seen as somewhat unclear, as it could arguably be a slim line between whether a lapsed warning has only been a contributory factor or actually the chief reason for the employer’s decision to dismiss.
3) Stratford v Auto Trail VR Ltd UKEAT/0116/16
Fast-forward to 2016. The EAT considered an appeal from Mr Stratford, who had claimed unfair dismissal after his employment was terminated with no live warnings on file and for an offence that was not deemed gross misconduct. Yet, his employer had had to deal with 18 instances of poor behaviour which had been dealt with by formal action since he had started working for the company. Given his previous history and his employer’s estimations that he would commit further acts of misconduct in the near future, the decision was taken to dismiss.
The EAT agreed with the tribunal that the employer was free to decide that enough was enough, and that dismissal in the circumstances would be fair. Indeed, the EAT explained that given all of his previous misconduct and the fact that he had been given a final warning which had expired by the time of the later misconduct would all be relevant factors as to whether Auto Trail had acted reasonably or not. With this in mind, the tribunal had not made a mistake and Mr Stratford’s appeal was dismissed.
Where does this case leave employers? Well, it should be welcome relief for employers as the EAT has reaffirmed that an expired warning is not an irrelevance when an employer comes to consider whether a dismissal is a reasonable decision in the circumstances.
Whilst it will still be unfair for an employer to rely solely on an expired warning as the main reason to dismiss, it will be open for an employer to take into account lapsed warnings where the warning is not the main reason for dismissal, or if the facts of the case show the employee to have such a predilection to committing acts of similar misconduct that there is a reasonable expectation that they will continue to do so in the near future.
The prudent employer should seek specialist advice before making a decision to terminate to see what their level of exposure is likely to be. In addition, employers will do well to bring in precise and clearly drafted disciplinary policies which provide for “repeat wrongdoers”.
Read our article on unfair dismissal for more information.
If you would like any further information in relation to issues pertaining to formal warnings, dismissals or any other HR queries then please contact Employment Solicitor Daniel Stander on or at email@example.com.