13 June 2018
Following the Court of Appeal decision in Airbus UK Limited v Webb, there are now limited circumstances where employers can take account of expired warnings when deciding to dismiss an employee. A word of warning though: where the employee is being dismissed for misconduct, any previous misconduct and expired warnings cannot be the reason, or the principal reason, for dismissal. These factors are only relevant to determine whether the dismissal is within the range of reasonable responses for an employer.
Mr Webb was an aircraft fitter for Airbus. In July 2004, he was accused of gross misconduct involving the misuse of Airbus's premises and equipment and the fraudulent misuse of company time. He was given a final written warning, which expired in August 2005 pursuant to Airbus's disciplinary policy.
In September 2005, Mr Webb and four colleagues were found watching television outside normal break time. Mr Webb was summarily dismissed for gross misconduct whereas his four colleagues were only given a final written warning. The stated reason for Mr Webb's dismissal was being ‘found watching television during company time whilst on nightshift'. Nothing was said in his dismissal letter about the expired final written warning.
Finding in favour of Airbus's decision to dismiss, the Court of Appeal held that Mr Webb's subsequent misconduct on its own was the principal reason for dismissal. Having determined the reason for dismissal, the Court had to decide whether, in the circumstances, Airbus acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing Mr Webb. The Court held that the previous misconduct and the expired warning were objective circumstances relevant to whether the dismissal for the subsequent misconduct was within the range of reasonable responses. Although Mr Webb's four colleagues could have been dismissed, the fact it was their first misconduct was an objective circumstance, meaning they received the lesser penalty of a final warning.
Employers should review their disciplinary policies in light of this decision and think about keeping warnings active for longer periods, for example, in cases of serious misconduct falling short of dismissal. Furthermore, if employers want to take account of an expired warning on dismissal, they should make sure the wording of the disciplinary policy allows this. Finally, the expired warning should not be given as the actual reason for the dismissal, rather, the employer should set out in terms the principle reason for dismissal.