In some cases, an employer can take into account an
employee's history of expired written warnings in deciding to
dismiss them following a further instance of misconduct.
Mr Stratford worked for Auto Trail VR Ltd from November 2001. He
had 17 items on his disciplinary record, the most recent of which
was a 3-month warning received in January 2014. All of the written
warnings he had received had expired.
In October 2014, Mr Stratford had his mobile phone in his hand
on the shop floor, which was strictly prohibited according to Auto
Trail's handbook. Following a disciplinary hearing, Auto Trail
decided to dismiss Mr Stratford with 12 weeks' pay in lieu of
notice. It reasoned that, whilst the mobile phone offence was not
of itself an act of gross misconduct (particularly given that there
were some extenuating circumstances), it was the eighteenth time
his behaviour had attracted formal action. If it gave Mr Stratford
another chance, there was nothing to suggest that there would not
be a similar situation in future.
Mr Stratford brought a claim in the Employment Tribunal alleging
The Employment Appeal Tribunal held that the dismissal was fair.
An employer (and an Employment Tribunal in determining the claim)
need not always totally disregard expired warnings. It was open to
them to take into account all of the relevant circumstances, given
the broad wording of the legislation on unfair dismissal. An
employee's disciplinary record is among those circumstances
– an employer need not disregard it simply because the
respective written warnings have expired.
However, the facts of this case were quite extreme and
circumstances where expired warnings can be relied on will continue
to be the exception, not the rule. In general, expired warnings
will not be relevant unless the act under consideration is already
sufficient to justify dismissal and the employer is taking the
older offence into account only in deciding whether to exercise
Stratford v Auto Trail VR Ltd UKEAT/0116/16
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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