Airbus Ltd v Webb
There are a number of tests – both statutory and judge made – for assessing whether a dismissal is unfair. In Airbus Ltd v Webb, the Employment Appeal Tribunal (EAT) has confirmed that expired warnings must always be ignored.
Mr Webb was summarily dismissed in July 2004 for gross misconduct, but reinstated on appeal and given a final written warning which stayed on his record for 12 months. He was told at the time that he would be dismissed for any further misconduct.
In September 2005 – three weeks after the warning expired – he was found watching television with four other employees when he should have been working.
Although all the men were disciplined, Mr Webb was the only one to be dismissed. He said that was unfair because his employer had obviously taken his expired warning into account when coming to their decision.
Relying on the case of British Home Stores Ltd v Burchell, the tribunal unanimously concluded that management’s "belief in the misconduct alleged was not only genuine but reasonable, and that it was reached after a reasonable investigation."
It also considered whether dismissal would have been a reasonable sanction under section 98(4) of the Employment Rights Act (ERA) 1996. This states that when considering whether a dismissal is fair, tribunals must have regard to all the circumstances. In this case, it said that it would have been fair, as his conduct constituted gross misconduct under the disciplinary procedure.
However, it concluded that the decision to dismiss him was unfair because, in Diosynth Ltd v Thomson (LELR 111), the Court of Session in Scotland said that expired warnings must be ignored.
Airbus tried to distinguish the case of Diosynth by arguing that the warning given to Mr Webb was not part of a ‘totting up’ procedure where they had considered dismissal in the context of his overall disciplinary record. Rather, his conduct in and of itself had merited dismissal.
The issue, it argued, was whether there were any mitigating circumstances that might have led Airbus to impose a lesser sanction than dismissal. As Mr Webb had been given a prior warning, it did not have to consider mitigation (the only significance of the warning).
Appeal tribunal decision
Although it sympathised with the employer, the EAT concluded that expired warnings have to be ignored in all circumstances.
It pointed out that as the purpose of giving them was to enable employees to know where they stand, then "if the warning is to expire, whether the language be that it is to be disregarded, ignored or excised from the record, we think that this would give rise to the expectation that this would be so for all purposes."
The slate must, therefore, be wiped clean once a warning has expired. Otherwise disciplinary procedures would be undermined, "even if minor or occasional blemishes or injustices may be produced by that principle." The only way round the rule was for employers to draft procedures that allowed for "exceptional circumstances".
Section 98(4) ERA
This decision comes hard on the heels of another EAT decision in Levenes Solicitors v Dalley which focused on the significance of section 98(4) of the ERA 1996 in claims of unfair dismissal.
In this case, a solicitor was dismissed for missing a limitation deadline, although someone else had not been dismissed for that in the past. Relying on the case of Hadjioannou v Coral Casinos Ltd (1981, IRLR 352), the EAT said that the tribunal had lost sight of the true question posed by section 98(4). That is, that It was more important to consider the individual circumstances of the dismissal than to adopt a "tariff" approach of seeing whether the claimant had been treated differently from someone else.
For many years the ACAS (Advisory, Conciliation and Arbitration Service) code of practice has required expiry periods for warnings insofar as they related to disciplinary issues. If an employer can use a warning against staff in any disciplinary context, then it can never be truly said to be expired. So this commonsense decision is to be welcomed for clarifying the law but trade unions need to watch out for employers who try to remove expiry periods to get round this issue.