Stratford v Auto Trail VR Ltd

Under section 98(4) of the Employment Rights Act 1996, an expired disciplinary warning may be considered when deciding whether a misconduct dismissal was fair. The relevant circumstances include the earlier misconduct, the warning and its expiry. No rule requires an employer or tribunal to disregard those matters in every case.

Fairness remains a contextual assessment of equity and substantial merits. It is material whether the earlier history is treated merely as a determinative, expired warning or as part of a longer disciplinary record bearing on the employer's assessment of future conduct.

The Claimant was dismissed after being found with a mobile telephone on the factory floor, contrary to a prohibition in the employee handbook. The employer did not find gross misconduct but terminated his employment after considering his extensive disciplinary history, including two expired warnings, and predicting that further disciplinary problems would arise.

The Employment Tribunal dismissed his unfair-dismissal claim. It held that the history could be considered under section 98(4) of the Employment Rights Act 1996 and that dismissal fell within the band of reasonable responses. The Claimant appealed, principally contending that expired warnings could not reasonably be relied upon where the latest misconduct did not itself justify dismissal.

1. Appeal dismissed. The Employment Tribunal made no error of law in upholding the dismissal as fair.

2. The applicable law was that stated in Airbus UK Ltd v Webb, [2008] IRLR 309. Section 98(4) permits the tribunal to consider, as part of all the circumstances, the facts of prior misconduct, the fact that a warning was imposed, and the fact that it had expired. The statutory language creates no inflexible rule that an expired warning must be ignored.

3. The Tribunal was entitled to consider the Claimant's earlier record together with the mobile-phone incident and the manager's assessment that the Claimant would not improve. The record extended over the employment relationship, involved numerous incidents and included matters that had not resulted in formal warnings.

4. Diosynth Ltd v Thomson, [2006] IRLR 284, was distinguishable. That case concerned a single expired warning which tipped the balance in relation to misconduct not itself warranting dismissal. It did not preclude the contextual assessment undertaken here.

5. The perversity ground was hopeless. The Tribunal's conclusion that the Claimant had not been unfairly dismissed was upheld. The remaining appeal and cross-appeal grounds consequently required no determination.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal's dismissal of the unfair-dismissal claim was upheld.
• Employment Tribunal (Lincoln): Employment Judge Blackwell dismissed the unfair-dismissal claim in a decision sent on 28 October 2015.