We’ve all come across cases where there is an employee with a history of disciplinary issues. Usually they’ve received warnings perhaps even final written warnings, and then behave themselves during the period of those warnings so that those warnings lapse. However at some later juncture fresh issues emerge and the employer takes the view that the history with this person suggests only a matter of time before there are more issues: overall there’s a pattern of behaviour, which makes them unsuitable to remain an employee.

In Diosynth Limited v Thomson an employee had been given a 12-month warning for failing to carry out a safety process but within a few months of the expiry of that warning there was a fatal explosion. The enquiry found that the same employee, along with his colleagues had failed to carry out the same safety process Thomson had been previously warned about. He was dismissed, the company making it clear that but for the previous warning he would not have been dismissed. The Scottish Court involved held that an employer could not rely on an expired warning as a determining factor in deciding to dismiss for misconduct. That 2006 case was then followed in 2008 by the Airbus Limited v Webb case where Mr Webb had been given a final written warning that lasted for 12-months making it clear that any further misconduct was likely to lead to dismissal. Three weeks after the expiry of that warning he was disciplined with four colleagues for being away from work when they shouldn’t have been. All were found guilty of gross misconduct. Mr Webb was dismissed but his colleagues who had clean disciplinary records were given final warnings only. The Court of Appeal in that case ruled that the decision in Diosynth did not mean that spent warnings could never be taken into account. In that case factors justified dismissal without a live warning. In the Airbus case, they distinguished the position and pointed out that the employees misconduct on its own was the principle reason for the dismissal. In those circumstances, it wasn’t unreasonable for the employer to have taken into account the previous misconduct in deciding the penalty to apply.

A recent case involved an employee that worked for a company called Auto Trail VR Limited. He had a poor disciplinary record (a list of 17 items on it, the last two of which were a nine-month warning for failing to make contact whilst off sick in December 2012 and a three-month warning for using company machinery and time to prepare materials for personal purposes in January 2014). At the time of his dismissal there were no live warnings on his file.

The Company Handbook strictly prohibited employees from using mobile phones on the shop floor. In October 2014, the employee was caught doing so and the Production Manager dismissed on 12-weeks payment in lieu of notice reasoning that whilst the conduct was not gross misconduct and would normally attract a final warning as it was the 18th time the employee’s behaviour had been subject to formal action so many times before there wasn’t any reason to believe there wouldn’t be a similar problem in the near future. He had no confidence that the employee understood the consequences of his actions and didn’t believe his behaviour would change.

The employee claimed unfair dismissal and at the original tribunal the judge found that the employee’s dismissal was for conduct consisting of his disciplinary history and the company seeing no reason to believe that this was going to change. The judge took the two cases above into account. Whilst normal employment practice was that, once a warning had expired the slate was wiped clean, the company had been entitled to have regard to the employee’s record overall and his attitude to discipline in general and decide that enough was enough. In those circumstances the judge found the dismissal was fair.

The employee appealed to the Employment Appeals Tribunal and the EAT confirmed that when considering the fairness of a dismissal under section 98 of the Employment Rights Act 1996, it was open to the tribunal to find the dismissal was fair even though the employer has taken into account previous similar misconduct, which was subject to an expired final warning. Deciding that the fact that a warning had been issued previously and later expired at the date of a later instance of misconduct would all be objective circumstances relevant to whether the employer was acting reasonably or unreasonably when assessing the merits of a case. The employer in this particular case had been entitled to take into account the previous record and the manager’s prediction as to how the future was going to go, when making its decision.

From the employer’s perspective, this is very helpful and confirms what I’ve indistinctively always felt namely that the Diosynth position was too black and white and didn’t deal with the sorts of circumstances this most recent case presented. Given most employers in their disciplinary procedures will be saying that they’ll ignore expired warnings, it begs the question at what point can history be taken into account? One of the judges in this particular case summarised the position as “finely balanced”. An employer imposing a time limited warning would be unfair in going back on that, on the other hand it has to be right that the employer can take into account the overall picture and history – the expired warning cannot make the fact of earlier misconduct an irrelevant circumstance.

I think what is clear is that an employer shouldn’t use an expired warning to elevate current conduct to the level of a dismissible offence as that is clearly impermissible under Diosynth. When there is a dismissible offence an employer has to decide whether or not to dismiss or perhaps give a final written warning, they might use the history to justify a dismissal.

I would recommend that in warning letters employers make it clearer that history is relevant and that disciplinary policies contain provisions for repeat offenders with staff aware that the pattern we’re talking about here could be taken into account.

I would also recommend that if dismissal is a possible outcome that in any case in which these issues come to the fore, the employee is made aware of the fact that because of their history an outcome of the process might be a dismissal before the hearing so they have a full opportunity to comment. It’s also worth remember in the Airbus case the judge, commented that whilst the ACAS Code of Practice refers to, for example, no more than a 12-month time limit on a warning that that is just guidance and it’s not necessarily the case that you cannot have a longer period. For example, in a serious health and safety case like the facts in Diosynth you might be able to justify a 24-month warning, again you might want to make sure that your disciplinary policy allows for this and draw this to employee’s attention particularly employee representatives who might try and argue with you about such issues.

If you would like me to review your procedure and your standard form warning letters, please contact me on adenton@refreshinglawltd.co.uk.