Some employers will be familiar with the employee who goes through all stages of the disciplinary procedure; only to keep their record clean until the last warning has expired before then re-offending. What can you do?
Employment Tribunals can look at a wider picture when assessing the fairness of a dismissal – that is was the dismissal fair in all the circumstances? Cogent evidence that an employee has been “playing the system” are circumstances that a Tribunal can be asked to take in to account.
This happened in the case of Stratford v. Auto Trail VR Limited where the Employment Appeal Tribunal found a dismissal for repeated use of a mobile phone to be fair despite previous warnings for such misconduct having expired.
Some thoughts, though, before you contemplate considering expired warnings in disciplinary action:
- Check that your disciplinary procedures are not contractual. If they are, then consider changing them (there is a process to be followed in doing this). Failure to follow a contractual procedure could lead to a breach of contract claim as well as an unfair dismissal claim.
- Make sure there is a true pattern to “waiting for a warning to expire, before re-offending”. To use one expired warning as the basis for a dismissal would make a nonsense of the expiry principle and almost certainly be unfair.
- Consider for what the previous expired warnings had been given. Repeated (albeit expired) warnings for the same offence (such as using a mobile phone) will carry far more weight as the basis of a fair dismissal.
- Consider the seriousness of the misconduct. Your disciplinary procedure should allow for “skipping” a step in the procedure if misconduct is sufficiently serious. However you could find yourself having to justify such a step at Tribunal.
- Take a second opinion. It is easy to make assumptions about employees taking advantage of the system but that is not always the case. Uncomfortable facts can emerge after hasty decisions.
Malcolm Martin FCIPD
Author Human Resource Practice