Case of the week: Previous misconduct counts in dismissal decisions

Airbus UK Ltd v Webb - Court of Appeal

Facts Webb worked for Airbus as an aircraft fitter. In July 2004, Webb was given a 12-month final written warning for misuse of Airbus premises and equipment and the fraudulent misuse of company time. The warning expired in August 2005. Shortly afterwards, Webb and four colleagues were found watching TV in the locker room when they should have been working. Airbus regarded this as gross misconduct. Webb was dismissed and his colleagues, all of whom had good disciplinary records, were given written warnings.

Webb brought an unfair dismissal claim, and argued that Airbus should not have relied on the expired warning to dismiss him. The tribunal and the Employment Appeal Tribunal (EAT) both said that an expired final warning should be disregarded for all purposes, relying on the Court of Session's decision in Diosynth Ltd v Thomson. In Diosynth, the employer had relied on an expired warning to tip the balance in favour of dismissal and without it, the other factors would not have justified dismissal.

Decision The Court of Appeal disagreed with both the tribunal and the EAT. The court said that the facts in Diosynth were different, because the employee would not have been dismissed had the expired warning not been given.

In this case, Webb had committed an act of gross misconduct for which dismissal was within the range of reasonable responses - regardless of the warning. The misconduct was the principal reason for dismissal Airbus only considered the earlier misconduct and expired warning when deciding the appropriate sanction. Unlike his colleagues, Webb did not have the advantage of a clean disciplinary record.

It is important to separate out the penalty from the misconduct. While a penalty can be time-limited, the misconduct cannot be. After a warning has expired, it cannot be relied upon as a reason for dismissal in its own right. But that does not necessarily mean that the underlying misconduct should no longer be relevant to the reasonableness of the employer's reaction to any later misconduct.

Implications This is a sensible decision and good news for employers. However, the court stressed that this decision should not encourage reliance on expired warnings as a matter of course. Therefore:

• Do not rely on an expired warning as a reason for dismissal. However, if you have a reason to dismiss, you may take into account past misconduct which was the subject of an expired warning.
• Take care when making dismissal decisions and drafting dismissal letters to avoid any suggestion that an expired warning formed any part of the reason for dismissal. If you are referring to an expired warning, only do so in terms of mitigation - that the employee's previous disciplinary record does not warrant a lesser penalty than dismissal.
• When giving warnings, tailor them to the particular circumstances, and make it clear how long warnings will last and what happens when warnings expire so employees know what to expect.
• While the Acas Code of Practice suggests a 12-month limit on final warnings, in serious cases, particularly where the warning is an act of leniency, consider issuing a longer warning.
• Refer to the Acas code and your disciplinary procedure before issuing warnings.

Judith Harris, professional support lawyer, Addleshaw Goddard.