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LEGAL UPDATE – Unfair dismissal – expired warning could be taken into account

Unfair dismissal – expired warning could be taken into account  

In Airbus UK Ltd v Webb, [2008] EWCA Civ 49, the Court of Appeal (CA) has held that a previous decision by the Court of Session in Scotland, in the case of Diosynth Ltd v Thomson, does not give rise to a general principle that, when an employer is determining whether or not to dismiss an employee, it can never take an expired warning into account. 

Having been dismissed for gross misconduct, Mr Webb had been reinstated upon appeal and issued with a final warning to remain on record for 12 months. 13 months later he was dismissed for gross misconduct again, but four other employees accused of the same misconduct were given final written warnings due to their previous good disciplinary records.  

The tribunal and the EAT found that due to the Court of Session’s decision in Diosynth Ltd v Thomson [2006] IRLR 284, the dismissal was unfair as Airbus had taken an expired warning into account in deciding to dismiss Mr Webb. Diosynth established the principle that an employer could not rely on an expired written warning as a determining factor in reaching a decision to dismiss. The CA allowed an appeal by Airbus.

The CA held that the facts of this case were different to those in Diosynth. In Diosynth the expired warning had tipped the balance in favour of dismissal. In this case, the warning was not the determining factor – it was simply part of the overall question of reasonableness – and Diosynth was not authority for the broad proposition that a previous spent warning should be ignored for all purposes. 

The CA’s ruling provides some welcome relief to employers who have had to watch ex-employees making out on the witness stand that they had been ‘little angels’. However, while the principle now applies that expired warnings do not have to be ignored for all purposes it will still be unreasonable for an employer to rely on an expired warning as the principal reason for dismissal. 

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