9th February 2017

Expired Warnings – should employers take them into account?

We take a look at a recent Employment Appeal Tribunal (EAT) case which examines the use of expired warnings when dealing with misconduct dismissals.

This case involved Mr Stratford who had a poor disciplinary record with his employer, Auto Trail VR Limited.

The final straw appears to have arisen when Mr Stratford was seen using his mobile phone on the shop floor which was strictly prohibited by the employee handbook.  Although accepted that this incident was not one of gross misconduct, Mr Stratford was dismissed since it was the 18th time that Mr Stratford had been talked to about his behaviour.

Importantly in this case there were no live warnings on Mr Stratford’s file at the time of his dismissal as his previous warnings had expired.

The starting position is normally that if a warning has expired, it cannot be relied upon. However, looking at previous cases on this area the EAT found that an employer does not have to ignore previous final written warnings because they have expired.  It falls to be considered as part of each case on its facts, and as part of the objective circumstances in deciding whether the employer has acted reasonably or unreasonably in making its decision.  Simply because a warning has expired does not make those circumstances irrelevant in deciding whether a dismissal is reasonable.

However, an expired warning cannot elevate an issue of misconduct to a dismissible offence.   In Mr Stratford’s case, the employer decided that his history of spent warnings and the expectation of future misconduct led to them deciding to dismiss. The EAT dismissed Mr Stratford’s appeal and found he had been fairly dismissed.

Although employers need to be aware of each case being assessed on its own merits, it is probably more helpful for employers to bear in mind that although the ACAS Code says that final warnings normally have a limit of 12 months, it does not always need to be the case.  A period of warning could be longer in certain circumstances and therefore warnings and disciplinary procedures can allow for this.

This case highlights that misconduct issues are not always straight forward and that the warning process and decision to dismiss must always be taken with careful thought being given to the process and facts of each case.

If you would like help with any disciplinary or performance matter, or any other employment law related query, please contact Linda Wilson on 01730 268211 or at .

N.B. Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice on your own particular circumstances.