What can you do with an employee whose personnel file is stuffed with disciplinary warnings which expire just before their next misdemeanour?

Well, in some situations there could be more flexibility than you think.

As specialist employment solicitors, we’ve come across plenty of situations where an employee has numerous warnings on file.  These may be for conduct or performance issues, but that employee manages to keep their socks pulled up for long enough to ensure that the formal warning expires just before another issue arises.  Employers hoping to see a permanent improvement from the employee, are frustrated by a repeating pattern of behaviour .

The Employment Appeal Tribunal has recently provided guidance in the case of Stratford v Auto Trail VR Limited.  Mr Stratford was dismissed following his 18th recorded disciplinary matter.  He was caught using a mobile phone on the factory floor, breaking company rules.  His employer dismissed him on the basis that he’d previously been issued with a final written warning (albeit that the warning had expired) and on his disciplinary record in general.

Auto Trail simply did not believe that his behaviour would improve.  Auto Trail decided to dismiss Mr Stratford and served him with notice.

Both the Employment Tribunal and the Employment Appeal Tribunal decided that Auto Trail had acted fairly.  They made clear that, in some circumstances, an expired warning can be taken into account when considering whether the employer had acted fairly in the overall circumstances of the case.

We’d advise employers to act carefully in situations like this.  Mr Stratford’s case is the exception rather than the rule, but it does provide some useful guidance for frustrated employers.

Just get in touch if you want to know more.

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