The employee in this case hardly had an exemplary record. In fact, he had been involved in 18 'serious discussions' about his poor performance over the years and was late on the day of his final disciplinary hearing because he went for a cigarette in case the hearing overlapped his morning break.

The key question was whether expired warnings could be taken into account when dismissing him for another serious offence - using his mobile phone on the shop floor. This falls under the GB legislation of the Employment Rights Act 1996 and, in particular, section 98 (4) i.e. having established a valid reason for dismissal (in this case, conduct) has been given by an employer, a tribunal must look at all the circumstances of the case in the round.

The same general test of fairness applies under Article 130 in the Employment Rights (NI) Order 1996:

"[Where] the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a)depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)shall be determined in accordance with equity and the substantial merits of the case."

So, could a tribunal, when assessing whether an employer acted reasonably in accordance with the general fairness test, rule that it was reasonable to take into account expunged or expired warnings? The answer is yes, although other supporting reasons must also be there. The EAT referred to the EWCA case of Airbus UK Ltd v Webb [2008] IRLR 309 and a Scottish Court of Session case of Diosynth Ltd v Thomson [2006] IRLR 284, both of which would be of persuasive power in Northern Ireland.

In Webb in particular, a warning for a similar matter had expired just three weeks before the incident that led to the claimant's dismissal. His colleagues, who were also found guilty of misconduct but received only final warnings over the incident, had clean records. Diosynth went the other way and the Scottish court thought that it was a contravention of the principle of fairness for an employer to put a time limit on a warning and then take it into account as a determining factor in a dismissal of an employee for a misdemeanour after the expiry date.

In this case of Stratford, the claimant had a series of warnings over a number of years and the dismissing manager had clearly just had enough, "You have given me no reason to believe that we will not be having a similar conversation in the near future." The EAT clearly preferred Webb.

Each case must be dealt with on its merits and, whilst this case and Webb may be useful references in future, readers would be advised to take legal advice before relying on expired warnings in a Northern Ireland context, where statutory procedures and other differences apply.
http://www.bailii.org/uk/cases/UKEAT/2016/0116_16_3110.html