In July 2004, Mr Webb was summarily dismissed for washing his car when he should have been working. On appeal, a lesser sanction, a final written warning, was imposed. Webb was informed that this would remain on his file for 12 months.
In September 2005, little more than three weeks after the expiry of the warning, Webb was one of five employees caught taking a break when they should have been working. All were found guilty of gross misconduct. Webb was summarily dismissed, but the other four received final written warnings because they had clean disciplinary records.
Webb claimed unfair dismissal, relying on the Scottish Court of Session’s decision in Diosynth Ltd v Thomson  in which the court found that the employer was wrong to take into account an expired warning when deciding whether or not to dismiss an employee for misconduct. The tribunal upheld Webb’s claim (relying on Diosynth) because it said that Airbus’s treatment of the other workers showed that it would not have dismissed Webb had it not been for the expired warning.
The Employment Appeal Tribunal (EAT) has now concluded with evident reluctance that it cannot overturn the tribunal’s decision. It said it was legitimate for Webb to assume that the warning would not be taken into account once it had expired and that the tribunal was not just entitled but actively obliged to disregard expired warnings for all purposes.
The EAT did, however, acknowledge that if employers are not going to be allowed to take into account the expired warnings in any circumstances, they should at least be given some flexibility over the length of time the warnings can last. It did not go so far as to say that employers can issue indefinite warnings, but it did say that in certain circumstances it may be appropriate to issue them for a longer period than would normally be the case.
This is a frustrating decision for employers because it flies in the face of both common sense and good industrial relations. It means that if a warning includes a time limit (which, in line with established good practice, most do), then once it has expired it can no longer be relied on – even if, as in Webb’s case, the employee goes on to commit a similar offence only a matter of weeks after the warning has expired.
If employers want to go down the extended warning route, they need to ensure that their policies and procedures give them the flexibility to do so. They should, for example as a minimum, reserve the right in any disciplinary procedure to extend the duration of warnings in certain circumstances (especially final written warnings) if the conduct justifies it.
Employers should also be cautious about taking expired warnings into account for other purposes – for example, in selecting for redundancy or promotion, or for pay or bonus purposes. Employers would have to make specific provision for even expired warnings to be used for these purposes.
David Whincup is partner and head of human capital at Hammonds
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