Serial offenders and expired notice – to dismiss or not to dismiss?
Employers have historically had to put up with so called 'trouble' employees who repeatedly face disciplinary proceedings, due to fear of these employees succeeding in unfair dismissal cases because the disciplinary sanctions are outdated. However, further to the EAT decision in Stratford v AutoTrail VR Limited [UKEAT/0116/16/JOJ], this no longer needs to be the case.
Mr Stratford worked for Auto Trail VR Ltd for almost 13 years. He had a very poor disciplinary record, having been subject to a number of informal discussions and issued with 17 disciplinary sanctions during that period. In October 2014 Mr Stratford was seen with his mobile phone in his hand on the shop floor, in breach of company policy. Further to a disciplinary hearing the Claimant was dismissed and paid in lieu of notice. In reaching this decision, the employer explained that the mobile phone incident was worthy of a final written warning. The employer acknowledged that there were personal circumstances for the employee which had led to him breaching the company policy. Mr Stratford had been given every chance, yet the employer did not believe his conduct would improve such that he would not be subject to future disciplinary proceedings. In other words, the employer had reached the end of their tether with Mr Stratford.
Mr Stratford claimed that his dismissal was unfair and that there was an ulterior motive in dismissing him – he claimed that he was dismissed so that his role could be replaced with a lower paid employee. The Employment Tribunal rejected Mr Stratford's claim and found that the decision to dismiss in these circumstances for misconduct was reasonable.
Mr Stratford appealed on the basis that the Employment Tribunal had erred in law by concluding that it was reasonable for the employer to have taken into account expired disciplinary sanctions in deciding to dismiss for conduct which fell short of gross misconduct. The EAT rejected Mr Stratford's appeal and upheld the dismissal as fair.
While it will not always be the case that it is reasonable to dismiss relying on expired disciplinary sanctions, this decision is good news for employers. It means that employers have more options when dealing with serial offenders who have been subject to a number of disciplinary procedures and sanctions throughout their employment; who show no sign of improving; and whose conduct at the material time could potentially amount to gross misconduct.
We would always advise that you get in touch with us for advice in these cases.