The EAT has upheld a decision that an employee was fairly dismissed when, having decided that a disciplinary offence merited a final written warning, the employer went on to dismiss the employee after considering his history of expired warnings and its belief that there would be future conduct issues.
Previous authorities have held that it is impermissible to have regard to a spent warning so as to elevate an offence from one which would not have attracted dismissal into one which does. Having reviewed these, the tribunal held that once an employer finds an employee guilty of an offence of gross misconduct, the employee's disciplinary history (including expired warnings) can be taken into account when determining sanction.
The fact of previous misconduct, the fact that a final warning had been given in respect of it and the fact that the final warning had expired at the date of the later misconduct, would all be objective circumstances relevant to, but not determinative of, the question of whether the employer acted reasonably or unreasonably and to the equity and the substantial merits of the case.