Can you dismiss an employee following repeated minor warnings?
May 22, 2017
As an employment law specialist, Matthew Taylor is often asked whether or not warnings which an employee had previously been given (and which had since expired) could then be used to justify that employee’s dismissal after they had committed another minor misconduct offence.
Just exactly what can be done with an employee who is frequently the subject of disciplinary action, yet the misconduct which led to such action being required does not quite reach the ‘dismissal threshold’?
This matter was recently raised in the case of Stratford v Auto Trail VR Ltd. In this case, Mr Stratford found himself in the unfortunate situation of having been subjected to disciplinary action for the 18th time since he commenced employment. Whilst the offence he had committed was relatively minor in nature (he had been carrying his mobile phone on the shop floor), his employer took the view that –in light of this being Mr Stratford’s 18th offence, together with his behaviour being highly unlikely to change in the future– termination of his employment was entirely reasonable in the circumstances, and accordingly took the decision to dismiss him. Mr Stratford however disagreed and ultimately issued Tribunal proceedings alleging unfair dismissal.
Mr Stratford’s case –he argued– was that where an employee is guilty of misconduct which falls short of gross misconduct, then it is unreasonable for an employer to rely upon earlier misconduct (in respect of past warnings) in justifying the decision to dismiss.
Unfortunately for Mr Stratford however, both the Tribunal and Employment Appeal Tribunal disagreed. In handing down its decision, the EAT re-iterated that –whilst any expired warning cannot be the factor which ‘tips the scales’ in favour of dismissal– an employer can still nonetheless take into account the past misconduct which lead to the (now expired) warning being given, when ultimately determining whether dismissal is a reasonable response in all the circumstances.
In terms of what this equates to in practical terms for employers, it is advisable to ensure you have a clear policy is in place clarifying how you intend to deal with ‘repeat offenders’, together with ensuring you keep good, reliable records in respect of any past incidents in which employees are involved and which ultimately led to disciplinary action being warranted.
Matt can help you with this – contact him on 01204 377600.