When disciplining an employee who has an existing disciplinary record, it is natural that the individual conducting the disciplinary hearing may either consciously or subconsciously take into account previous incidents on the individual's disciplinary record of which he or she may be aware. However, doing so and letting this factor influence the final outcome of the disciplinary can be dangerous for the employer, especially if the previous warnings have expired.
To what extent can employers take into account employees' disciplinary history when deciding whether or not to dismiss them for their latest disciplinary offence? Three recent cases in the Employment Appeal Tribunal (EAT) have addressed this issue in various guises and provide guidance for employers.
A long history of disciplinary problems: Stratford v Auto Trail VR Ltd
Mr Stratford had a long history of disciplinary issues throughout his employment with Auto Trail, accruing 18 different disciplinary offences in total. He received a number of different penalties for these offences, ranging from informal action to written warnings. The final straw for his employer was when Mr Stratford was found using his mobile phone on the factory floor, something which was apparently strictly prohibited under the company's disciplinary policy. A disciplinary meeting was held and it was decided that the claimant's behaviour did not in itself constitute gross misconduct and a final written warning was given – a fortunate escape? It seems that Mr Stratford's luck had run out, since the decision was taken to dismiss him anyway as a result of his long disciplinary history. Management took the view that he had been given all available opportunities to improve his conduct, had not done so, and they did not believe he would do so in the future.
Mr Stratford brought a claim for unfair dismissal and the Employment Tribunal held that the employer was entitled to take into account his disciplinary history when making the decision to dismiss him or not. He appealed, arguing his employer should not have been able to rely on previous disciplinary misconduct where the warnings had expired. The EAT dismissed the appeal, finding that employers are able to take disciplinary history and previous disciplinary actions into account when deciding whether to dismiss an employee or not. When considering such action, employers must take into account the circumstances around the previous misconduct, such as the facts leading to the incident, the age of the incident and whether or not any warning has expired.
Relying on an unfair previous warning: Perry Motor Sales v Edwards
In this case employee was dismissed for tampering with invoices, an activity for which he had previously received a 'first and final written warning'. At the disciplinary hearing, it was decided that as the details of the two disciplinary offences were so similar, Mr Edwards had breached the implied duty of trust and confidence and so was dismissed. He claimed unfair dismissal, although he did not raise the validity of the original warning as a substantive issue.
The Employment Tribunal held that the original final written warning was, given various mitigating circumstances such as lack of training and support and increased pressure to hit targets, outside of the range of reasonable responses available to the company. The warning had played an important role in the final decision to dismiss, and the termination of his employment was therefore unfair.
The EAT agreed with the employer that the Tribunal's decision to look behind the original warning when it hadn't been an issue raised by either party had been the wrong approach, and in doing so it had substituted its own view of that of a reasonable employer. Further, even if the Tribunal had been right to look at the validity of the original warning, it had erred in its approach in doing so. Instead of deciding whether the warning had been within a range of reasonable responses, it should only have looked to see if the warning was 'manifestly inappropriate' or had been made in bad faith.
Previous inappropriate final warning: Bandara v British Broadcasting Corporation
The Claimant in this case worked for the BBC's Sinhalese service for 18 years with an unblemished disciplinary record. However, after two separate incidents, he was issued with a final written warning. The Claimant was dismissed by the BBC a few months later following a separate incident, however the disciplinary decision specifically referred to the original warning as being a factor in the dismissal.
The Employment Tribunal held that the final written warning had been "manifestly inappropriate" and in fact a more appropriate outcome would have just been a written warning. As was seen in the Edwards case, this was the correct approach, however the Tribunal then went on to look at if the decision to dismiss would have been reasonable if this more appropriate disciplinary measure had been implemented. It found that even with this lesser prior warning, the decision to dismiss was still a fair one.
The EAT found that although the Tribunal was entitled to find the original final written warning inappropriate, it should then have disregarded it completely and was wrong to substitute a hypothetical, more reasonable sanction. By doing so, it moved away from looking at the reasoning the employer actually applied when making the decision to dismiss. Instead the Tribunal should have looked at how much weight had been given to the inappropriate final written warning, and if this in itself then made the final decision unfair.
Points to take away for employers
To some extent, employers can take some degree of comfort from the outcome of these three cases. They demonstrate that the slate does not have to be wiped completely clean once a disciplinary warning has expired and that an employee's disciplinary record can be taken into account when deciding on an appropriate disciplinary sanction.
The EAT has consistently upheld the limits on an Employment Tribunal's ability to question previous disciplinary decisions taken by an employer. Both Edwards and Bandara show that the general rule for Tribunals should be that earlier disciplinary decisions are not reopened, and only examined if it is clear that a previous warning had been manifestly inappropriate or made in bad faith. Even if a warning falls into one of these exceptional categories, a Tribunal can only look to see what impact this inappropriate warning had on the final decision and not apply hypothetical alternatives. Tribunals should not seek to step into the shoes of the employer and decide whether or not their decision was reasonable or not in the circumstances.
However, despite this level of comfort that the
cases provide to employers, they also demonstrate the caution that
should be taken by employers in situations where they are looking
to dismiss for disciplinary reasons an employee who has an existing
disciplinary record. In this scenario, the following lessons can be
taken away from these cases:
Previous disciplinary sanctions should only be taken into account when deciding upon the sanction for what would in isolation be a potentially dismissible offence. They should not be used to convert an offence which would on its own not justify dismissal to a dismissible one
If an employee's disciplinary record is to be considered when making a disciplinary decision and the decision maker is in any doubt as to the appropriateness of a previous disciplinary sanction, they should question whether the decision they are about to make would still be appropriate should a lesser sanction, or no sanction at all, have been made originally. This reasoning should then be explicitly mentioned in the decision
If the previous disciplinary decision in question was a verbal or written warning which had subsequently expired, extreme caution should be used when taking it into account for the current decision. To be safe, such previous disciplinary decisions should only be used where they were issued for a substantially similar offence to the one currently in question or, as in Stratford, as evidence of prolonged poor discipline
Employers should review their disciplinary policies to ensure that it makes clear that the company can and will take into account the employee's previous disciplinary recording when deciding upon the appropriate sanction to impose
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.