Expired warnings cannot influence employers, Tribunal rules

M G Webb worked for Airbus as an aircraft fitter. Previously he had been found washing his car when he was supposed to be working. Though his employer said that this was grounds for dismissal he was given a written warning with a term of 12 months.

Thirteen months after this incident he and four other employees were discovered reading newspapers and watching television during the working day. Webb was dismissed, but the other employees were given a formal warning.

Webb took a case to the Employment Tribunal, which he won. It was appealed by Airbus, but the EAT backed the original decision.

The EAT found that the conduct itself was worthy of dismissal, but the fact that Webb was the only employee fired meant that there was some factor distinguishing his case from those of the others, and that that was the previously issued warning.

"Here is an employee who after being fortunate enough to have a dismissal reduced to a final warning on appeal, commits a very similar act of gross misconduct shortly after that warning has expired," said the EAT's ruling. "The misconduct would have justified the dismissal independently of the warning; to that extent the warning did not contribute to the decision to dismiss. Having regard to the history, he was not differently treated from the other employees; he had been given another chance, and so were they."

"At the same time, however, it is clear from the treatment of the other similarly placed employees that but for the warning, or more accurately, but for the commission of the earlier offence which gave rise to the warning, Mr Webb would not have been dismissed," it said.

The EAT followed the guidance of earlier cases, and interpreted them as meaning not only that an employment tribunal is allowed to ignore expired warnings, but that it must do so.

"In our view [the Tribunal] was applying a very modest and entirely logical extension of the principle enunciated by the court in [a previous] case. Moreover, we think that the general thrust of that case, and certainly [two other] EAT cases is that where but for the expired warning the dismissal would not have occurred, that dismissal is unfair."

"We confess that we have had some difficulty deciding whether those two cases were intending to establish that a tribunal is obliged, and not merely entitled, to ignore expired warnings, but on balance we think that they were," it said.

The rulings could change the kinds of warnings that are given to employees. The EAT emphasised that clarity is essential. "The purpose of giving warnings is to enable the employee to know where he stands and what is expected of him," it said. "If the warning is to expire, whether the language be that it is to be disregarded, ignored or excised from the record, we think that this would give rise to the expectation that this would be so for all purposes."

Airbus had argued that the two court cases mentioned did not oblige Tribunals to come to the conclusion that the initial Tribunal had come to. The EAT disagreed.

"In an area of this kind where there are two competing principles, each of which has much to commend it, in my view it would be inappropriate to dissent from earlier decisions of this Tribunal, and particularly undesirable to part company with a decision of the Inner House of the Court of Session with the consequence that the law in England and Wales would differ from that in Scotland on this point," it said.