Normally an employer shouldn’t take account of ‘expired’ warnings when dealing with a current disciplinary issue – if they want to avoid a finding of unfair dismissal. However, the Employment Appeal Tribunal (EAT) has recently decided that in certain circumstances, it’s ok for an employer to take expired warnings into account. It found that the employee’s poor record together with the employers view that conduct issues were likely to continue to arise in the future entitled the EAT to conclude that the employer had acted reasonably in dismissing the employee.
But don’t let’s get carried away! This decision doesn’t give employers a free hand to treat expired warnings as though they were live. What it’s saying is that an employer is not expected pretend that previous misconduct doesn’t exist when considering a current disciplinary matter. As with most unfair dismissal, it will be up to the Tribunal to decide whether the employers’ decision to take account of expired warnings was reasonable in all the circumstances. (Stratford v Auto Trail VR Ltd, EAT, 31.10.16 (0116/16))