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Expired warnings and misconduct? Be careful when dismissing!

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Andrew Egan

Andrew Egan

Andrew Egan, an employment specialist with law firm, Charles Lucas & Marshall, explains the implications of a recent tribunal decision as to whether expired warnings for employee misconduct are still relevant if the employee is eventually dismissed.

In Stratford v Auto Trail VR Ltd, Mr Stratford, who had worked for Auto Trail since 2001, was dismissed for misconduct. He had a poor disciplinary record consisting of many offences, most recently a nine month warning in December 2012 and a three month warning in January 2014.

Both warnings had expired by the time of the events which led to his dismissal. On 15 October 2014, he was disciplined for having his mobile phone in his hand on the shop floor, which was ‘strictly prohibited’ by the employer’s handbook.

As this was his 18th formal disciplinary offence, in addition to numerous informal conversations, the investigating manager felt that there was reason to believe that there would be a further conversation in future and dismissed Mr Stratford. After appealing unsuccessfully, Mr Stratford brought a claim for unfair dismissal.

The tribunal judge held that the employer had been entitled to take into account Mr Stratford’s disciplinary record and that his dismissal in the circumstances was fair.

Mr Stratford appealed to the Employment Appeals Tribunal (EAT) on the basis that the misconduct did not justify his dismissal and that it was not reasonable for his employer to rely upon expired warnings for previous misconduct as the main reason for his dismissal.

The EAT upheld the employer’s decision, saying that the obligation to act reasonably when deciding whether a particular act was sufficient to justify dismissal meant that it was open to a Tribunal to find that the dismissal was fair.

The Judge noted that the previous misconduct, the fact that a final warning had already been given although had expired by the date of the subsequent misconduct, were objective circumstances relevant to the questions of reasonableness, equity, merits and fairness.

As a general rule, an expired warning cannot be used to increase any misconduct, which would not normally lead to dismissal, into a dismissible offence. However, where the behaviour amounts to gross misconduct warranting dismissal, an employer is entitled to take into account an expired warning when determining what sanction to impose.

Every case will turn on its own facts. In this case, Mr Stratford’s disciplinary record contained many more incidents, spanning the entire period of his employment.

Employers are therefore best advised to ensure that their disciplinary policy stipulates that the duration of any warning may be extended in respect of a subsequent act of gross misconduct which is substantially the same.

Also, where examples of misconduct and gross misconduct are given, the policy should make clear these are only a guide. Employers should specifically draw their employees’ attention to the employer’s disciplinary policy.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk


Written by Andrew Egan

January 19th, 2017 at 1:07 pm

Employee Dismissed Fairly For Derogatory Comments Against Employer On Facebook

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In British Waterways Board v Smith [2015], the Employment Appeals Tribunal (“EAT”) considered whether it was fair to dismiss an employee who had made derogatory statements about his employer on Facebook, even though the employer had been made aware of the misconduct 12 months before the dismissal.

Andrew Egan

Andrew Egan

This case shows that an employer that has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. In this case, the misconduct predated the dismissal by two years and the employer had known about it for a considerable part of that time, yet the EAT did not criticise the employer for relying on it to dismiss the employee.

The employer in this case also deliberately searched for evidence against the employee who had raised grievances. This case confirms the decision in Williams v Leeds United Football Club [2015] where an employer ultimately avoided making a large pay-out to an employee, after the employer had found material on which it based a summary dismissal by means of a “fishing expedition” without censure from the court. In that case, the misconduct preceded the dismissal by five years, but the employer only discovered it shortly before dismissing the employee.

The case of Smith is a reminder to employers of the importance of maintaining an effective social media policy and is also a reminder to employees of the importance of exercising caution when posting online.

For further information please contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

August 11th, 2015 at 8:58 pm