Written warnings and unfair dismissal

An interesting case was recently considered by the Employment Appeal Tribunal (EAT) on an issue which will be familiar to employers; namely written warnings.

The employee in question had 17 expired warnings on his employment record amassed during some 13 years of employment with the company. In addition, there has been a large number of informal conversations during his employment regarding conduct but which were not in themselves formal warnings.

He was finally dismissed upon receipt of his 18th warning. The warning was for having his mobile phone on the shop floor - the employer accepted that this issue did not amount to gross misconduct in itself, but he was dismissed due to the litany of past, expired warnings.

The employee brought a claim of unfair dismissal and the Employment Tribunal found that his dismissal was fair. The case came before the EAT when the employee appealed.

The EAT agreed with the view of the Employment Tribunal.  Even though the previous warnings had expired by the time of the dismissal, there was no error in law in the employer's decision to dismiss based on the employee's poor conduct and the likelihood of it happening again (taking his past conduct into account).

The general rule is that an employer cannot rely on expired warnings when taking the decision to dismiss someone. The facts in this case were unusual in that there were so many warnings over a 13 year period.

Employers would be well advised however to ensure that their policies are up to date and that managers are properly trained to ensure that they only dismiss in fair circumstances.

Case: Stratford v Auto Trail [2016] UKEAT0116/16

If you would like to discuss this or any other employment related issue, please contact Rehana Ali on (01489) 785737.

For further information or to speak to one of our experts, please call us on: