Can expired written warnings be taken into account for dismissal
Submitted by Kate Russell - Author of 101 Tips for Employers
Following the case of Diosynth Ltd v Thomson, there have been a number of cases confirming that once a disciplinary warning has expired it can’t be used for “totting up” purposes. This can be very frustrating for an employer where an employee seems to be playing the system. While the decision in Diosynth remains the general rule, a recent Court of Appeal decision shows that - in some cases at least - expired warnings can be taken into consideration in reaching a conclusion.
Mr Webb worked for Airbus as an aircraft fitter. In July 2004, he was discovered washing his car when he should have been working. This was deemed to be an offence of gross misconduct (misuse of company premises and equipment and fraudulent misuse of company time) and Mr Webb was dismissed. On appeal the dismissal was reduced to a final written warning. Mr Webb received a letter confirming that the warning would be placed on his personal file for 12 months and subsequently removed provided his conduct reached certain standards. It concluded that the likely consequence of further misconduct was dismissal. The warning expired in August 2005.
About three weeks after the warning had expired, Mr Webb and four colleagues were found watching TV in the locker room when they should have been working. Airbus regarded this as gross misconduct. Mr Webb was dismissed and his colleagues, all of whom had good disciplinary records, were given written warnings.
Mr Webb complained of unfair dismissal, arguing that Airbus had relied on the expired final warning to dismiss him. Both the tribunal and Employment Appeal Tribunal agreed that, following the decision in Diosynth v Thomson, an expired final warning should be disregarded for all purposes.
Overturning the EAT’s decision, the Court of Appeal said that the facts in Diosynth were different, because in that case the employee would not have been dismissed had the expired warning not been given. In this case Mr Webb had committed an act of gross misconduct for which dismissal was a reasonable response, irrespective of the expired warning. The misconduct was the principal reason for dismissal, not the expired warning. Airbus only considered the earlier misconduct and expired warning when deciding the appropriate sanction. Unlike his colleagues, Mr Webb did not have the advantage of a clean disciplinary record and therefore the dismissal was fair. Airbus UK Ltd v Webb [2008]
This decision is good news for employers, but proceed with caution. Webb doesn’t mean that employers can rely on expired warnings as a matter of course.
Actions for employers:
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If you have reason to dismiss, you may take into action past misconduct which was the subject of an expired warning, particularly if it is the same type of misconduct.
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If you have a reason to dismiss, you may take into account past misconduct which was the subject of an expired warning, particularly if it is the same type of misconduct.
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When making dismissal decisions and drafting dismissal letters avoid any suggestion that an expired warning formed part of the reason for dismissal. If you are referring to an expired warning, only do so in terms of mitigation, i.e that the employee’s previous disciplinary record does not warrant a lesser penalty than dismissal.
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Tailor warnings to the particular circumstances. Make it clear how long warning will last and what happens when they expire so employees know what to expect.
- It is open to you to issue longer warnings in some cases, but make provision for this in your disciplinary procedure. In serious cases, particularly where the warning is an act of leniency, consider issuing a longer warning.
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