Richard White, specialist employment solicitor at Withy King, considers a case that looks at whether employers can rely on expired disciplinary warnings when deciding whether or not to dismiss an employee.

Are employers entitled to take expired disciplinary warnings into account when deciding whether to dismiss an employee? Not according to the Employment Appeal Tribunal (EAT) that ruled that expired warnings must never be taken into account. However, that decision has been overturned by the Court of Appeal.

Airbus UK Limited v Webb

The facts were that Mr Webb was employed as an aircraft fitter at Airbus’s Filton site. In July 2004, Mr Webb was dismissed for gross misconduct for washing his car when he should have been working. On appeal, Mr Webb was reinstated and the dismissal was reduced to a final warning. The warning was expressed to remain on his file for 12 months until the end of August 2005. He was informed that any further misconduct was likely to lead to his dismissal.

In September 2005, three weeks after the final written warning expired, Mr Webb committed a similar offence to the one that he had been warned for in 2004. Mr Webb had been found with four of his colleagues in a locker area watching television, when they should have been working. Mr Webb was dismissed. His four colleagues were not. The employment tribunal found the dismissal was unfair because of inconsistent treatment between Mr Webb and his colleagues. The tribunal followed a previous EAT decision that required previous spent warnings to be ignored for all purposes. Airbus appealed on the basis that it was legitimate to take an expired disciplinary warning into account.

The decision

Reciting the competing arguments, the EAT said it was a finely balanced point but decided that a tribunal must ignore expired warnings. The EAT decided therefore, that the tribunal had been right to conclude that Mr Webb’s dismissal was unfair. Airbus appealed.

In allowing Airbus’s appeal, the Court of Appeal ruled that there was no broad proposition that when an employer is deciding whether or not to dismiss, it can never take into account an expired warning issued to the employee in question. The relevance of the warning is simply part of the overall question of reasonableness.

In the present case, the reason for Mr Webb’s dismissal was that he was guilty of gross misconduct in 2005, not that he had received a warning for his July 2004 conduct. As such, Airbus was entitled to give some consideration to the expired warning when deciding whether or not to dismiss Mr Webb for his gross misconduct in 2005.

Comment

Although this is a useful decision for employers, it should not be relied upon as authority that employers can resurrect expired warnings in order to dismiss employees.

What appears to have influenced the Court of Appeal in allowing the appeal in this case was that the employee had repeated the same type of misconduct for which he had previously been warned, and the warning had only just expired.

If an employer relies on an expired warning as the principal reason to dismiss an employee, such a dismissal will be unfair. However, it may well be reasonable for an employer to take into account a previous expired warning and the underlying misconduct in certain circumstances (such as the Airbus case), where these matters are not the principal reason for dismissal.

For further advice on this topic, please contact Richard White, specialist employment solicitor at Withy King, on 01225 352 921 or email richard.white@withyking.co.uk