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Can employers have regard to warnings that have expired to justify dismissal? A recent EAT decision suggests that in certain circumstances they can, although the judgement gives precious little guidance to employers about what those circumstances might be.

Mr Stratford had been employed for 13 years by Auto Trail,in the course of which he had clocked up 17 disciplinary issues. The last two of those were a nine-month warning for failing to make contact whilst off sick and a three-month warning for using company machinery and time for personal purposes. Both those warnings had expired when he was seen on the shop floor with a mobile phone, something that was "strictly prohibited". At the disciplinary hearing, Mr Stratford put forward explanations and reasons as to why he had the phone on the shop floor. The manager decided that because of those explanations Mr Stratford was not guilty of gross misconduct and issued a final warning for use of a mobile phone on the shop floor. However, he dismissed Mr Stratford because it was the 18th time they had had to discuss his actions on a formal basis, he believed that Mr Stratford had been given "every chance" and he did not believe that Mr Stratford's conduct would change. (As an aside, the manager also noted "You were also late for your disciplinary hearing on Friday because you went for a cigarette in case the hearing overlapped your morning break"!)

The EAT upheld the Tribunal's decision that the dismissal was fair. This causes a certain amount of confusion, in light of a couple of earlier authorities. In Diosynth Ltd v Thomson in 2006, the Scottish Inner House of the Court of Session confirmed that employers cannot take into account expired written warnings when deciding the sanction for a new disciplinary matter, although in that case there had been just one previous warning. In Airbus Ltd v Webb in 2008, the English Court of Appeal held that expired warnings could be taken into account in certain circumstances, but such circumstances appeared to be very limited: in that case, Mr Webb and three others had all been found guilty of gross misconduct for being away from work when they should have been working, and the expired final warning on Mr Webb's record was used to justify treating him differently to the other three in the sanction given – dismissal for Mr Webb, final warnings for the others (none of whom had disciplinary records).

In essence, the EAT in the Stratford v Auto Trail case took the view that the statutory test for fairness is a wide one and permits an employer to take account of expired warnings in certain circumstances. The statutory test for fairness, once a potentially fair reason for dismissal has been established, is whether in the circumstances the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee and whether the dismissal is fair when "in accordance with equity and the substantial merits of the case". Mr Stratford's manager was clearly of the view that as a consequence of his disciplinary record Mr Stratford's conduct was not going to improve, and the Tribunal considered that that was a factor that could be thrown into the mix in deciding whether or not to dismiss, along with the usual practice of wiping the slate clean once a warning had expired.

If I were an employer, I would still be very cautious about relying on an expired warning to dismiss: Mr Stratford's circumstances, particularly the length of his disciplinary record, were unusual, and the case is certainly not authority to ignore the usual practice of ignoring disciplinary warnings that have expired. What employers might want to do is review disciplinary procedures and the wording of final warnings that are given to allow for the possibilty of exceptional circumstances which merit the taking into account of expired warnings.

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