Those of you who are regulars to our employment workshops may remember discussing the case of Airbus UK Limited v Webb and whether expired warnings can be taken into account when an employee subsequently misbehaves.
Mr Webb was employed as an aircraft fitter by Airbus. In July 2004 Mr Webb was found washing his car on work time and was dismissed for gross misconduct. On appeal this was reduced to a final written warning expressed to remain active on his file for 12 months ending in August 2005. The letter reinstating him warned that further misconduct was likely to lead to dismissal.
In September 2005, 3 weeks after the final written warning expired, Mr Webb was found with a bunch of 4 other workmates watching television when they should have been working. All employees involved were found guilty of gross misconduct and whilst the other 4 were given written warnings and prevented from doing overtime for 6 months, Mr Webb was dismissed. The dismissal letter did not mention the expired written warning but stated that the reason he was dismissed was being “found watching television during company time whilst on night shift”.
Mr Webb brought a claim for unfair dismissal and was successful in the tribunal and the Employment Appeal Tribunal (‘the EAT’) in relying on the argument that his employer had acted unfairly in taking into account the spent final warning for the purpose of deciding his penalty for the later misconduct. The EAT held it was unfair to treat Mr Webb differently from the other 4 employees on the basis of a warning which had expired. This was the stage the case had reached when we discussed it at our workshop in October 2007.
Airbus has since successfully appealed to the Court of Appeal. The Court held that spent warnings can be taken into account as long as they are not the principal reason for the dismissal. An employer needs to have a fair reason to dismiss and such action needs to be within the range of reasonable responses. However, expired warnings can be considered, as in the case of Mr Webb, in deciding whether to allow mitigating circumstances (such as the white record of the other 4 employees) to impose a lesser sanction than otherwise. Because Mr Webb and the other 4 employees could all have been fairly dismissed for the misconduct in September 2005, Mr Webb had not been dismissed because he had an expired warning; rather the fact he had an expired warning had failed to save him from the otherwise fair dismissal.
As discussed at our workshops, the previous decisions of the tribunal and the EAT had suggested that employers must never take account of expired warnings when considering what disciplinary sanction to impose. The Court of Appeal has now given employers a little more flexibility; it is still unreasonable to rely on an expired warning as the main reason for dismissal but not unreasonable to take it, and the previous misconduct, into account where they will not be the main reason for dismissal.
One of the main action points we see for employers arising out of this case is to examine your policies on written warnings. Be sure to make warnings appropriate to the gravity of misconduct and to keep careful records of expiry dates.
For help with shaping up your disciplinary procedures or providing appropriate written warnings, contact the
Employment Team at Follett Stock on 01872 241700 to discuss confidentially.
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