The Court of Appeal has overturned the decision of the Employment Tribunal (ET), upheld by the Employment Appeal Tribunal (EAT), that an employee was unfairly dismissed because his employer had taken account of an expired disciplinary warning when deciding to dismiss him (Airbus UK Ltd. v Webb).
Mr Webb worked for Airbus as an aircraft fitter. In July 2004 he was dismissed for gross misconduct after he was found washing his car when he should have been working. He appealed against the decision to dismiss him and the disciplinary action was reduced to the lesser sanction of a final written warning which would remain on his record for 12 months.
Three weeks after the written warning expired, Mr Webb and four other employees were caught in the locker area, watching television, outside their normal break time. All five were found guilty of gross misconduct and were therefore liable to dismissal. Mr Webb was dismissed but for the other four employees the usual penalty of dismissal was mitigated because they had no prior disciplinary record and they were instead given final warnings.
Mr Webb claimed that he had been unfairly dismissed. The ET took into account the decision of the Scottish Court of Session in Diosynth Ltd. v Thomson (Diosynth) in which the Court had ruled that the employee was entitled to assume that a disciplinary warning meant what it said and that it would cease to have any effect after the specified time limit. As Mr Webb would not have been dismissed had he not been given a previous warning, the ET held that it was bound by authority to find that his dismissal was unfair.
Airbus appealed against the ET’s decision and lost. However, the EAT confessed to having some difficulty in deciding whether or not the ET is obliged to ignore past warnings that have expired, but judged on balance that it is.
On appeal, the Court of Appeal held that Diosynth is not authority for the general proposition of law that misconduct for which a final warning was given that has expired can never be taken into account by the employer when deciding to dismiss an employee or by the ET when deciding whether or not that decision was reasonable. All the circumstances of the decision to dismiss should be taken into account when determining whether it is fair under the Employment Rights Act 1996 S.98(4).
In the Court’s view, there was a significant distinction between the facts in Diosynth and those in the present case. In Diosynth, the expired warning was the principal reason for the dismissal. The other factors would not of themselves have justified the action. However, the reason for Mr Webb’s dismissal was that he was guilty of gross misconduct on the second occasion, not that he had received a warning for his conduct in July 2004. He was dismissed on account of repeated misconduct, having already received the lesser penalty of a final warning on the previous occasion. The absence of previous misconduct on the part of the other four employees was a reason for imposing a lesser penalty on them. The EAT ought therefore to have allowed Airbus’s appeal.
Law Firm Pinder Reaux and Associates says, “It is important to ensure that the time limits for disciplinary warnings fit the particular situation and that your policies and procedural rules allow you flexibility to deal with exceptional circumstances. Where an expired disciplinary warning is taken into account when deciding whether or not to dismiss an employee, it should not be the principal reason that tips the balance in favour of dismissal.”
Pinder Reaux & Associates