The EAT in Stratford v Auto Trail VR Ltd (31 October 2016) had to consider whether dismissal for gross misconduct using expired warnings could be fair. The employee in this case committed an act that would normally only attract a final written warning, he had no current warnings but he did have a long disciplinary record. The employer considered the passed misdemeanours and found that the employee should be dismissed for gross misconduct.
The Tribunal and the EAT upheld this decision.
The ability to use an employee’s past record is dependant on the facts of a particular case. The key here from an employers perspective is to take care (and advice) when considering dismissing on such a basis and to minimise ambiguity in the workplace by taking time to configure the disciplinary policies and procedures clearly communicating the same to the staff. The normal position is that you should not take into account expired warnings.