In Stratford v Auto Trail VR Ltd the EAT found a dismissal to be fair despite the employer’s reliance on earlier expired warnings.
Mr Stratford had been accused of misconduct when using his mobile phone at work. This act was not viewed as gross misconduct and Mr Stratford had no ‘live’ warnings in place, however, in deciding to dismiss, the employer took Mr Stratford’s disciplinary record into consideration (17 disciplinary actions in 14 years) which included expired warnings and informal action.
The EAT found that Mr Stratford has been fairly dismissed as, due to the sheer number of previous offences, it was fair for the employer to conclude that Mr Stratford’s conduct would not improve.
A reliance on expired warnings (where the most recent act alone would not justify dismissal) will usually render a dismissal unfair and employers should be careful not to apply the reasoning in this case too broadly. The sheer volume of offences was of huge significance here as was the fact that many of the previous offences had been dealt with informally (thus these had no expired warnings). Had Mr Stratford not had such a vast disciplinary record the Tribunal would have likely reached a different conclusion.
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