UK: Wiping The Slate Clean? The Role Of An Employee's Disciplinary History

Last Updated: 2 March 2017
Article by Michael Chattle

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions