Expired Warning

Employment Law – Expired Warning – Dismissal – Misconduct – Court of Appeal Decision

In the case of Airbus UK Limited v Webb [2008] the Court of Appeal decided to overturn the decision of the employment tribunal that first heard the case. It should be noted that the decision of the employment tribunal was subsequently upheld by the Employment Appeals Tribunal (“the EAT”). The employment tribunal and the EAT held that the employee in this case was unfairly dismissed due to the fact that the employer had taken into account an expired warning in its decision to dismiss the employee.

The Court of Appeal decided that the tribunal had been incorrect to follow the decision in Diosynth Ltd v Thomson [2006] where it was held that a spent warning should be ignored. The Court of Appeal confirmed that the Diosynth case is authority for the fact that an employer will be acting unreasonably in relying on an expired warning as the principal reason to dismiss an employee. However, that case did not decide that spent warnings can never be taken into account.

The Court of Appeal also held that the Diosynth case could be distinguished from this case.

In the Diosynth case, the expired warning had tipped the balance in favour of the dismissal of the employee. Without the expired warning being taken into consideration, the other factors taken together would not have justified dismissal.

In the Airbus UK case, it was the employee's misconduct on its own that was the principal reason for the employee’s dismissal.

Note: This is an important decision for employers as it provides scope for them to take into account previous similar misconduct in deciding whether to dismiss an employee for subsequent misconduct, even in the event that the previous misconduct was subject to a warning that had expired.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.