The status of expired warnings for misconduct

It used to be thought that an expired final warning given to an employee could not be taken into account when an employer was considering dismissal. This at least is what was thought to be the effect of Diosynth Ltd v Thomson [2006] IRLR 284. There the Court of Session held that an employer would be acting unreasonably in treating a previous warning which had expired as a determining factor in deciding to dismiss for similar breaches. An employee was entitled to expect a lapsed warning to mean what it said and to cease to have effect on expiry. The EAT in Webb v  Airbus UK Ltd v Webb [2006]  284 said that where but for a lapsed warning a dismissal would not have occurred, the dismissal would be unfair.

The Court of Appeal have now allowed the employers appeal in Airbus UK Ltd v Webb "The Times" 26 February 2008. Mr Webb had just finished a 12 months warning for fraudulent use of company time when he and 4 others on nights were caught watching the tele at work outside break time. He was dismissed but not the other 4. The Court of Appeal in distinguishing Diosynth said that in Webb the employee's later conduct on its own was shown by the employer to have been the principal reason for dismissal. In Diosynth a different issue was being addressed: there the position of the employer was that the expired final warning tipped the balance in favour of the dismissal as the other factors taken together would not have justified dismissal. It was the first misconduct of the 4 who were not dismissed but who received a final warning. In Mr Webb's case it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning previously. The EAT in Webb wrongly held that Diosynth was authority for the proposition that a previous spent warning should be ignored for all purposes.

So, an employer cannot treat the lapsed warning as determinative, but can take such lapsed warning into account. Gedditt?

It will have to be seen if this puzzling analysis stands up to scrutiny in the House of Lords if there is an appeal. It seems to go against the ACAS Code of Practice which recommends the desirability of employers disregarding spent warnings, [see paras 22 and 24 of the Code], is against the legitimate expectations of employees acting in reliance upon internal disciplinary procedures and is hardly good for industrial relations where certain and consistent rules are at a premium.

Rather than "2 strikes and you are out", it is more a case of "1 strike and you are out" (if you did it  before even though we forgave you!)

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.