In Airbus UK Limited v Webb, the Court of Appeal reversed a decision of the Employment Appeal Tribunal and said that, in certain circumstances, it may not be necessary to ignore spent warnings when making a decision about whether to dismiss an employee. David Widdowson sets out the details.

In order for a dismissal to be fair, an employer must show that they have a fair reason for dismissing an employee, and that the dismissal is fair in all the circumstances.

Mr Webb had been given a final written warning for using company time and equipment to wash his car. The warning expired at the end of August 2005. Approximately three weeks later, Mr Webb, and several of his colleagues, were found watching television during company time. Mr Webb was dismissed for this second offence (taking into account the earlier, expired warning) but his colleagues (who had clean disciplinary records) were not dismissed.

The Court of Appeal held that the dismissal was fair, and noted there are no hard and fast rules for determining the fairness of a dismissal; the important question will be whether the employer acted reasonably or unreasonably in coming to its decision. However, there is nothing in the relevant legislation or guidance to suggest that taking into account a spent warning is absolutely prohibited.

The Court of Appeal also approved the practical guidance for employers, set out in the Employment Appeal Tribunal’s decision. This was, in summary, that:

		employers should be careful when giving warnings that they are tailored to the circumstances;
		warnings longer than 12 months’ duration may be acceptable where the misconduct justifies it and, in particular, where a lesser penalty may be an act of leniency;
		a warning may be extended with respect to a later act of gross misconduct which is the same, or substantially similar to, the misconduct to which the earlier final warning relates;
		employers should have reasonable flexibility in formulating their rules for exceptional cases;
		notwithstanding all of the above, any rules must be clearly drafted and drawn to the attention of employees.

Points to note

This case is a positive development for employers, as it confirms that expired warnings do not always need to be disregarded entirely when making a decision to dismiss. However,

		expired warnings should only be relevant where the previous misconduct is similar to the misconduct to which the dismissal relates;
		an expired warning should only form the backdrop to a decision to dismiss; it cannot be used as the principal reason for a dismissal; and
		the requirement for general fairness should always be borne in mind when making a decision to dismiss. For example, it is still likely to be unfair to take into account a warning which expired a very long time before the new offence, or to take into account misconduct which is entirely different in nature from the new misconduct.