Employment Update: Unfair dismissal

20 March 2007

Must an expired warning be treated for all purposes as if it had never occurred when the employer is later considering dismissal for misconduct?

In Airbus v Webb, decide on 14 February 2007, the president of the EAT took the opportunity to discuss expired warnings in some depth. On an earlier occasion, the employee had been summarily dismissed for gross misconduct but, on appeal, given the lesser sanction of a final written warning to remain on his file for 12 months. Three weeks after the expiry of that warning, he was one of a group found outside the workplace but not on a normal break. They were all found guilty of gross misconduct. The others were not dismissed because they had no prior disciplinary record. He did and was dismissed. The tribunal found that this was unfair because the previous written warning had expired and should not have been taken into account and the EAT agreed

Points to note –

  • The dismissal would have been fair if all the employees had been dismissed. The tribunal had found that the employer genuinely believed that misconduct had occurred and it had conducted a reasonable investigation.

  • When considering a misconduct dismissal, all expired warnings must be ignored. The ACAS code says that it is good industrial practice for there to be a normal time limit of a maximum of 12 months on any written warning. The EAT says that employers could manage the problem by more subtle drafting of their disciplinary procedures. If they wish to make exceptions, and make some final warnings indefinite in time, they can do so. They may also be justified in extending the period of a written warning when there is a later act of gross misconduct the same or substantially the same as the earlier one.

  • To be effective, more complex disciplinary procedures will have to be carefully drafted and clearly drawn to the attention of the employees. We can advise on how this should be done.