The recent case of Stratford v Auto Trail VR Limited suggests that in some circumstances, you can.

Mr Stratford was caught with his mobile phone on the factory floor, a practice strictly prohibited under the employer’s disciplinary policy. The employee loved his job and claimed that the circumstances were unfortunate, despite the disciplinary policy setting out adequate provisions for emergency contact. He asked to be given another chance.
 
The problem was that Mr Stratford had a colourful disciplinary record of 17 offences over the 13 year course of his employment! At the time of the mobile phone incident though, there were no live warnings, the most recent having expired around 6 months ago.

The employer dismissed Mr Stratford

They cited the many informal conversations and the 17 previous disciplinary offences. The employer recognised that Mr Stratford didn’t always intend to breach the disciplinary rules but concluded that he didn’t understand the consequences of his actions. The employer believed that it would be having the same conversation again in the not too distant future if a lesser disciplinary sanction were imposed.

The Employment Appeal Tribunal ruled that the dismissal was fair

The employer was allowed to take into account Mr Stratford’s disciplinary record and the likelihood of further disciplinary offences in the future in deciding on a sanction.

This case doesn’t mean that previous expired warnings can always be relied on

The particular circumstances need to be taken into account and no doubt the sheer number and pattern of disciplinary offences were relevant factors against Mr Stratford.

There is also a subtle distinction between using expired warnings to elevate conduct into a dismissible offence (which is not allowed) and taking into account previous conduct when issuing a sanction (which is allowed).
 
Carefully worded policies and letters in situations like this are crucial, as is the need to ensure an appropriate level of warning for each disciplinary offence. For more information on this or any other employment issue, contact our Employment team.