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Employer entitled to take previous expired disciplinary warning into account in dismissal decisions
Airbus UK Limited v Webb
In Airbus UK Limited v Webb the Court of Appeal overturned the decision of the Employment Tribunal (whose decision had been upheld by the Employment Appeal Tribunal) that an employee was unfairly dismissed because the employer had taken into account an expired warning in its decision to dismiss.
The facts
Michael Webb was dismissed by Airbus UK Ltd in November 2005 over claims that he and four colleagues were spotted watching TV in a locker-room during their night-shift at a time when they should have been working. Mr Webb’s colleagues were spared dismissal on the grounds of their clean disciplinary records.
Mr Webb had been the subject of disciplinary action by his employer on a previous occasion. In July 2004, Mr Webb was found by his employer to have made "fraudulent misuse of company time" by "washing his car when he should have been working.” Airbus had summarily dismissed him over the car washing incident, but he was reinstated on appeal and was instead issued with a final written warning that would remain on his file for a year.
By the time that Mr Webb was disciplined by his employer for the second offence, the initial warning had expired. Nevertheless, Airbus took Mr Webb’s previous warning into account in dismissing him for the second offence. As a result, the Employment Tribunal held that Mr Webb had been unfairly dismissed by Airbus. This decision was upheld by the Employment Appeal Tribunal.
Unfair dismissal
Employees have the right not to be unfairly dismissed. It is for the employer to establish that the dismissal was for a potentially fair reason. Furthermore, the employer must act reasonably in dismissing the employee for the reason in question. The Employment Tribunal has to decide whether, in the circumstances, the employer's decision to dismiss the employee falls within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.
The main question for the Court of Appeal was whether it is ever reasonable for an employer to take into account misconduct which was the subject of an expired warning.
The Court of Appeal decision
The Court of Appeal observed that the above question was "a difficult one". Nevertheless, it went on to hold that the Employment Tribunal had erred in law in finding that an expired warning should be ignored for all purposes. In overturning the Employment Tribunal’s decision, the Court of Appeal made the important point that an expired warning could not justify a dismissal where the warning was the principal reason for the dismissal. However, an employer could take the expired warning into account as one of the reasons justifying the dismissal. In the present case, the expired warning merely tipped the balance in favour of dismissal; it was not the principal reason for dismissal. Consequently, the Court of Appeal held that the dismissal was fair in the circumstances.
Comment
This decision brings a degree of comfort for employers in this difficult area.
Employers can now take into account misconduct that has been the subject of an expired disciplinary warning when deciding whether to dismiss an employee for a further disciplinary offence. However, a Tribunal will only hold such an action to be reasonable where the expired warning is not the principal reason for dismissal.
Further information
For further information on the issues raised in this E-Zine, please contact Murray McCall, Alan Glazer or your usual contact at Anderson Strathern.
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