Employee's past can contribute to dismissal despite expired warnings, says judge

The judgment reverses a ruling from the Employment Appeals Tribunal (EAT), which had said that in disciplinary proceedings, employers must disregard previous written warnings if their time limit has expired.

Lord Justice Mummery has said that while the warnings themselves should be disregarded that does not mean that the conduct that lead to the warning cannot be taken into account in later disciplinary proceedings.

"Although the warning penalty and the record of it on the file was time-limited, the misconduct in respect of which it was given was not itself time-limited," he said.

The ruling will give clarity to companies who want to refer to past behaviour when disciplining employees, according to employment law specialist Ben Doherty of Pinsent Masons, the law firm behind OUT-LAW.COM.

"The decision does permit an employer to rely on the conduct which justified the expired warning when deciding whether it is reasonable to dismiss that employee for committing the same offence," said Doherty. "In these circumstances the act of misconduct would in itself need to be gross misconduct such that the employee may be dismissed for the first offence."

A Mr MG Webb worked for Airbus where he was an aircraft fitter. He was accused of misusing company time in 2004 when found washing his car when he ought to have been working. He was dismissed for gross misconduct. That was changed to a final written warning whose effect would last 12 months.

Three weeks after the warning expired he was found watching television on the night shift with four colleagues and dismissed. His colleagues were given a final written warning.

An Employment Tribunal (ET) found that Airbus's disciplinary procedures were sound and that Webb's actions could be grounds for dismissal. 

Webb's lawyers argued that the dismissal was unfair because his four colleagues were treated differently to him and that the only reason for this was the existence of his previous, by then expired, written warning.

The ET and the Employment Appeals Tribunal (EAT) both found in Webb's favour that the reason he had been treated differently was the existence of the expired warning. They said that such warnings should never be taken into account after they had expired.

Lord Justice Mummery agreed in part, saying that warnings ceased to have direct effect when they expired. He did differentiate, though, between the warnings themselves and the conduct which led to them. That conduct can be taken into account, he said.

"The warning ceased to have effect as a penalty which could be relied on as a conduct reason for dismissal," he wrote in his ruling. "It did not necessarily follow that the misconduct, in respect of which the penalty was imposed, ceased to have any relevance to the reasonableness of the employer's response to later misconduct. The previous misconduct was a fact which was not necessarily eradicated by the penalty itself or by its expiration or by its removal from the record."

Webb's lawyers continued to argue that he had been treated differently because of the expired warning. Lawyers for Airbus argued that all the employees were treated the same in that for their first offence they received a written warning.

They said that Webb was dismissed the second time because it was a second offence, and that the others had only committed a first offence and received the same punishment as Webb had on his first offence.

"There was no disparate treatment of the employees involved. They were all treated the same. None of them were dismissed for a first offence of misconduct," said Lord Justice Mummery. "It was the first misconduct of the four employees who were not dismissed, but received the lesser penalty of a final warning. In the case of Mr Webb it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning on the previous occasion.

Pinsent Masons's Doherty, though, warned that employers need to be careful if they rely on this ruling.

"Employers should rely on this judgment as authority for considering expired warnings when deciding to dismiss with caution. It does not provide authority for an employer who is considering taking disciplinary action against an employee with an expired warning for a similar offence to rely on that expired warning when deciding what action to take," he said.

"For example an employee who has an expired first written warning for a relatively minor act of misconduct can not be given a final written warning for committing a similar act of misconduct a second time after the expiration of the first written warning."

"Similarly if the employee has an expired final warning for repeated offences of minor misconduct the employer can not rely on that warning to dismiss if the employee commits the same offence again," said Doherty.