Employment Update: Unfair Dismissal

17 March 2008

An expired warning does not make earlier misconduct irrelevant to the fairness of a subsequent dismissal for similar misconduct.

Is a dismissal necessarily unfair if the employer would not have dismissed but for taking into account an expired disciplinary warning?

In its recent decision in the case of Airbus v Webb, the Court of Appeal had to consider whether it was fair for the employer to dismiss an employee for gross misconduct when he had committed the same act (absenting himself from work without good reason) just over a year earlier. On that occasion, it had also been decided to dismiss him but that decision had been reduced on appeal to a final written warning stated to remain on his file for 12 months only.

The Court of Appeal said that, in order to comply with s.98(4) of Employment Rights Act and decide whether the employer acted reasonably in treating the reason given as the reason for dismissal, there may be cases where an expired final warning should be taken into account and this was such a case. The dismissal was fair.

This overturns the EAT decision in this case and the decision of the Scottish Court of Session in the case of Diosynth Ltd v Thomson and the ACAS Code which states that an expired warning should normally be disregarded for disciplinary purposes.

The Court of Appeal stresses that employers should not now rely on expired warnings 'as a matter of course'. The key point seems to be that there is a distinction between a case where the employer would not have dismissed but for the previous warning (Diosynth) and a case where the employer is entitled to dismiss for the current offence and chooses to do so rather than issue a final written warning because it takes the previous offence (as opposed to the previous warning) into account.

Point to note:

  • On the occasion of his final act of misconduct, Mr Webb was not the only employee watching TV when he should have been working but he was the only one who was dismissed. The Court of Appeal has confirmed that this was not disparate treatment of employees who committed the same offence, and so not unfair for that reason either. In this case it was fair that the other employees caught not working at the same time were not dismissed but only given a final written warning because it was their first offence. In the case of Mr Webb, it was repeated misconduct for which he was fairly dismissed, having received the lesser penalty of a final written warning on the previous occasion.

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