In Stratford v Auto Trail VR Ltd, Stratford (S) had a poor disciplinary record. The last 2 items in the list of 17 prior offences were a nine-month disciplinary warning for failing to make contact while off sick and a three-month warning for using company machinery for personal purposes.  Both of those warnings had expired by the time of the events that led to S’s 18^th offence and his dismissal.

S’s 18th disciplinary offence was having his mobile phone in his hand on the shop floor, which the employee handbook described as being “strictly prohibited”. While S was charged with gross misconduct, the dismissing officer considered the offence was misconduct, but nevertheless dismissed S. The ET took into account the dismissing officer’s evidence when considering whether dismissal was reasonable in all the circumstances of the case and found the dismissal to be fair.

The dismissing officer had stated that it was the 18th time misconduct had arisen and S had given no reason to believe that there would not be similar conversations about his unacceptable behaviour in the near future, as, whilst S’s actions may not always be intentional, he did not understand the consequences of his actions and there was no belief this would change. In addition, S was late for his disciplinary hearing because he went for a cigarette in case the hearing overlapped his morning break.

S appealed, arguing that where an employee is guilty of misconduct falling short of gross misconduct which, in itself, does not justify the sanction of dismissal, it is not reasonable for the employer to rely upon earlier misconduct as the principal reason for dismissal where any warnings given in respect of the said misconduct have ceased to have effect.

The EAT dismissed the appeal. An expired warning can be taken into account as part of the overall circumstances under section 98(4) Employment Rights Act 1996 when the ET is considering whether a dismissal is fair and reasonable given all the circumstances. The Court of Appeal in Airbus UK Ltd v Webb had ruled that the facts of the previous misconduct, the fact that a warning was given and the fact that it had expired, were all relevant matters. Taking the law as it should be applied, the ET had not erred by taking account S’s previous record, along with the nature of the offence and the manager’s prediction as to the future if S was not dismissed.

The EAT’s ruling must not be taken to mean that an expired warning can be used as the sole reason to justify dismissal. The Airbus ruling tells us that the language in S.98(4) is wide enough to include considering an employee’s previous misconduct as ‘one’ of the range of relevant circumstances which can be taken into account. Page 28 of the Acas Guide on Discipline and grievances at work sets out an indication of what those relevant circumstances are and includes, among other things, the employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service.

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