Expired Warning In ET claims

Expired warning can be taken into account when deciding whether to dismiss

In Airbus UK Limited v Webb [2008] EWCA Civ 49 the Court of Appeal overturned the decision of the tribunal (which had been subsequently upheld by the EAT) that an employee was unfairly dismissed because the employer had taken into account an expired warning in its decision to dismiss. The tribunal erred in law in holding that it was required by Diosynth Ltd v Thomson [2006] IRLR 284 to find that a previous spent warning should be ignored for all purposes. The Court confirmed Diosynth is authority for the fact that an employer will be acting unreasonably in relying on an expired warning as the principal reason to dismiss an employee; it did not decide that spent warnings can never be taken into account. The Court also found that Diosynth could be distinguished from this case. Whereas in Diosynth the expired warning tipped the balance in favour of dismissal (as the other factors taken together would not have justified dismissal), in this case the employee's misconduct on its own was the principal reason for the dismissal.

This is an important decision for employers and provides scope for an employer to take into account previous similar misconduct in deciding whether to dismiss an employee for subsequent misconduct, even where the previous misconduct was the subject of an expired warning.