Reliance on expired disciplinary warnings

The Employment Appeal Tribunal (EAT) has recently confirmed that expired warnings can never be taken into account by an employer when deciding whether to dismiss an employee.

In Airbus UK Ltd v Webb (UKEAT/0453/06/DA), Mr Webb was issued with a final written warning for misconduct.  Three weeks after the warning expired, he and four colleagues committed a similar offence to that for which he had previously been warned.  Mr Webb was dismissed, but his colleagues were not.  The employment tribunal found the dismissal was unfair because of inconsistent treatment.  The employer appealed, on the basis that it was legitimate to take the expired disciplinary warning into account.

The EAT upheld the tribunal’s decision, finding that "a tribunal is obliged, and not merely entitled, to ignore expired warnings".  Even though the offence committed was serious enough to amount to gross misconduct, the fact that Mr Webb’s colleagues were not dismissed showed that the employer had relied on the previous warning when deciding on the appropriate sanction for Mr Webb.  That warning had expired and therefore the dismissal was unfair.  The EAT confirmed that the purpose of a warning is to enable the employee to know where he stands and what is expected of him.  Once the warning expires, the slate should be wiped clean.

In the light of this case, employers should ensure that when giving warnings, particularly final warnings, they are tailored to the particular circumstances.  Although it is good practice for final warnings to have a time limit of 12 months, this is not always appropriate.  The warning could be longer if the nature of the misconduct justifies it, or if the imposition of a lesser penalty (for example a final warning as opposed to dismissal) is an act of leniency.  Employers should review their disciplinary procedures to ensure that they allow for some flexibility in this respect.