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“Playing the System”
Do you have employees that “play the system” by making sure written warnings expire before they commit another act of misconduct so that you can’t take it into account? If so you might be interested to hear about the case of Stratford v Auto Trail VR Ltd.

In this case, Mr Stratford had a very long history of warnings - 17 of them in fact, but all of them had expired when he was disciplined for an 18th time for an act of misconduct. As a consequence the company took the view that although the particular act did not constitute gross misconduct and under normal circumstances would merit a final written warning, it believed that on the basis of his past history, Mr Stratford would not break his pattern of behaviour and dismissed him. The case went to tribunal with Mr Stratford arguing that the previous warnings should not have been taken into account.

The Tribunal agreed with the company that the dismissal had been fair. It said that the company was entitled to take account of Mr Stratford’s disciplinary record and of his general attitude to discipline. Enough was enough.

The Employment Appeal Tribunal agreed with the original decision saying that it can be acceptable to take account of an employee’s record. However whether that is reasonable or not will depend on the circumstances of the case. In Mr Stratford’s, the history of misconduct, together with a prediction of future problems, was considered to be a legitimate consideration.

Although you should not use this case to support the use of expired warnings when considering future disciplinary decisions, it may assist you deal with employees who find themselves in trouble over and over again. Make sure you make your basis for decisions clear and make sure they fall into the band of reasonable responses.

If you need help with employees whose performance is a persistent issue, please get in touch.
Posted on 07 Feb 2017

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