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Dismissal fair despite reliance on expired warnings

In this case a tribunal and the Employment Appeal Tribunal decided that a dismissal was fair even though the employer relied on previous warnings.

Mr Stratford started work for Auto Trail VR Ltd (Auto Trail). He had a poor disciplinary record, the last two in a list of 17 items were a nine-month warning for failing to make contact while off sick in December 2012 and a three-month warning for using company machinery and time to prepare materials for personal purposes in January 2014. There were no live warnings on Mr Stratford’s file at the time of the events that led to his dismissal.

On 15 October 2014, Mr Stratford was seen with his mobile phone in his hand on the shop floor. This was “strictly prohibited”. Following a disciplinary hearing, the decision was made to dismiss Mr Stratford with 12 weeks’ pay in lieu of notice for the following reasons:

  • Despite Mr Stratford being aware of the correct procedure regarding emergency contact through the switchboard and despite there being no reason for him to have had his phone on the factory floor, there had been unfortunate circumstances. Taking these into account the offence was not one of gross misconduct and would attract a final written warning.
  • However, in addition to many informal conversations, this was the eighteenth time that Mr Stratford’s behaviour had been the subject of formal action. While Mr Stratford had asked for one more chance, stating that he loved his job, was highly skilled and passed on his skills to new employees, there was no reason to believe that there would not be a similar conversation in the near future. While Mr Stratford’s actions may not always be intentional, he did not understand their consequences and it was not believed that this would change.

After his internal appeal was unsuccessful, Mr Stratford claimed unfair dismissal. The tribunal rejected the claim. An employment judge held that Mr Stratford had been dismissed for conduct consisting of his disciplinary history.

The employment judge considered the normal employment practice that once a warning had expired that the slate should be wiped clean but also balanced that against Auto Trail’s decision that enough was enough. The Tribunal decided that the dismissal was fair.

Mr Stratford appealed and this was dismissed.

The case highlights the need for carefully drafted disciplinary policies which anticipate dealing with “repeat offenders” and to exercise care when giving warnings.