The Court of Appeal has decided that an employer may, in certain circumstances, take expired disciplinary warnings into account when deciding whether to dismiss an employee.
(Decision by Court of Appeal in Airbus UK Limited v Webb ).
When deciding whether or not to dismiss, it may be permissible for an employer to take into account:
- a previous expired warning; and
- previous similar misconduct;
- providing that the employee's current misconduct is still the principal reason for dismissal.
It will still amount to an unfair dismissal if an employer relies on an expired warning as the main reason for dismissal (ie. if the conduct itself would have been insufficient without taking into account the expired warning).
Mr Webb (the Claimant) was employed by Airbus (the Respondent) as an aircraft fitter since 1990.
In 2004 the Claimant was summarily dismissed for gross misconduct (misusing company time and equipment by washing his car when he should have been working). He appealed against the dismissal and a final written warning was imposed instead. The warning was to remain on the Claimant's personal file for a period of 12 months and the Claimant was warned that further misconduct was likely to lead to dismissal.
Three weeks after the expiry of his final written warning, the Claimant was again accused of misconduct (watching TV when he should have been working). Following an investigation the Claimant was dismissed for gross misconduct and his appeal against the decision was rejected. Four other employees accused of the same misconduct were given final written warnings, rather than being dismissed, because they had clean disciplinary records.
The Claimant brought a claim for unfair dismissal.
Both the tribunal and EAT found that the Claimant had been unfairly dismissed. The tribunal relied on the decision in Diosynth Ltd v Thomson as authority for the fact that an employer cannot rely on an expired written warning as a factor in deciding whether or not to dismiss, in any circumstances (as reported in our newsflash of 16/02/07).
However, the Court of Appeal has overturned these decisions. The Court found that Diosynth did not decide that spent warnings can never be taken into account. In Diosynth the expired warning tipped the balance in favour of dismissal (as the other factors taken together would not have justified dismissal). In this case, however, the principal reason for the dismissal was the employee's current misconduct.
The Court's decision clarifies that it would not be unreasonable for an employer to take into account a previous expired warning and the underlying misconduct in circumstances where these are not the principal reason for the dismissal.