Stratford v Auto Trail VR Ltd UKEAT/0116/16

Mark: The central issue here is about warnings, and warnings are a particularly contentious subject matter in the workplace because they have an apparent shelf life, an apparent lifespan, and certainly, with the Labour Relations Agency and its code of practice, it's decided that, for example, if you have a live warning, it stays on record, for example, 12 months, and 12 months is usually the standard. After that it becomes what's referred to as expunged or spent or expired and cannot then be used to be resuscitated, if you like, in any future cases.

In this particular case, the pattern of behaviour – and it was a clear pattern of behaviour – was such that the employer was allowed and it was deemed to be reasonable for the employer to effectively resuscitate an expired warning to say, "This is indicative of a pattern of behaviour that has been occurring for a long period of time, so we're resuscitating it in order to effect the dismissal of this employee."

So at face value, it looks quite contentious on these, but as with many things in employment law, there are fact sensitivities attached to it, so you have to be aware that there was a very definitive pattern of behaviour here. In this particular case, it was appropriate for the employer to resuscitate an expired warning and use it.

That's not to say that this gives an employer a green light to do this. There is limited case law in this. The Airbus and the Diosynth case in 2006/2008 would indicate that it's not good practice, but fact sensitivity may determine that you need to resuscitate an expired warning on occasion.

Scott: So if you've got real chancer out there working for you, well, you employed them, but if you've got somebody that's really pretty bad, you might get away with it. But in general, terms, if they're expired, they're gone.

Mark: That's right. That's right.

Was it related to absence?

Mark: No, it was misconduct. It was behaviour.

Scott: Right.

Mark: Behaviour. It was using the mobile phone on the shop floor and the behavioural indiscretions.

Scott: Right.

Mark: Of which there many.

Scott: Okay, but it would be easier to maybe go back to look at a pattern if there is something like absence. So that might give the employers a little bit of succor there, if you like.

Mark: Yeah. There would have to be a clear pattern, and the obvious one is absence. Also bullying behaviours. Where there’s an employee who effectively, and to use the term that's being bandied about now is gaming the system, keeping their nose clean until such times as the warning becomes spent and then engaging in the behaviour again either from an absence perspective or from a behavioural perspective, yes, there's an argument there that you'd be able to show the pattern, and the only way to show the pattern is to resuscitate the latest of the live warnings or the expired warnings to show that the individual was clearly gaming the system.