A Warwickshire employment law specialist has given a qualified welcome to a Court of Appeal decision that expired disciplinary warnings may still be taken into account when deciding whether to dismiss an employee.
In the Appeal hearing of Airbus v Webb the court heard that in July 2004 Mr Webb had been summarily dismissed for washing his car when he should have been working. On appeal, a lesser sanction, a final written warning, was imposed which would remain on his file for 12 months.
In September 2005, about a month after the warning expired, he was caught watching TV during company time with some colleagues and was dismissed. His colleagues – who had not had previous final warnings – were not dismissed.
Mr Webb claimed unfair dismissal at a subsequent tribunal and his appeal was upheld. The tribunal held that Airbus’ treatment of the other workers showed that it would not have dismissed Mr Webb had it not been for the expired warning.
The Employment Appeal Tribunal concluded that it could not overturn the tribunal’s decision.
Michael Wakeling, a partner at Stratford-upon-Avon solicitors Lodders, and a member of the firm’s business dispute resolution department, said: "It did not go so far as to say that employers could issue indefinite warnings, but it did say that in certain circumstances it might be appropriate to issue them for a longer period than would normally be the case.
"This was a frustrating decision for employers because it flew in the face of both common sense and good industrial relations."
Airbus took the case to the Court of Appeal which overturned the EAT verdict. It held the dismissal was fair. Lord Justice Mummery said that reliance upon an expired warning was a relevant factor in deciding whether the employer had acted reasonably.
In some circumstances it might mean any subsequent dismissal was unfair – but did not inevitably mean that it was unfair.