In the March 2006 issue of Employment Law SMIB, we reported the
case of Diosynth Limited v Thomson. That
case concerned the issue of whether an employer can have regard to
an expired disciplinary warning when deciding upon the level of
disciplinary sanction to impose on an employee. The EAT has now
considered this issue again in Airbus UK Limited v
Webb.
In July 2004, Mr Webb had received a final written warning for
washing his car when he should have been working. The warning
stated that it would remain on his personnel file for 12 months.
Thereafter, some three weeks after expiry of the warning, Mr Webb
and four of his colleagues were found watching television in a
locker area. Again, this was at a time when they should have been
working.
Disciplinary proceedings were instituted against all five
employees. They were all found to have been guilty of gross
misconduct but only Mr Webb was dismissed. The other four were
given a final written warning and removed from night shift for a
period. The employers justified the difference in treatment on the
basis that, whilst Mr Webb had previously received a final written
warning for similar misconduct, his four colleagues had clean
disciplinary records. The circumstances of this case were
accordingly very similar to the Diosynth case. In that
case, the employers also sought to use a lapsed disciplinary
warning as a basis for distinguishing between a number of employees
who had committed the same misconduct.
The Employment Tribunal found Mr Webb to have been unfairly
dismissed. The employers appealed to the EAT. Before the EAT, the
employers' QC argued that the Diosynth case should not be
followed and that it had been wrongly decided.
In the EAT's written judgement, the President of the EAT
referred to the case raising "a difficult point where the
arguments are finely balanced." Nonetheless, the EAT decided
to follow the Diosynth case and, as a consequence, the employer's
appeal was dismissed.
It follows therefore that once a disciplinary warning has
expired, no weight at all can be attached to it in any subsequent
disciplinary proceedings. This principle applies even when the
misconduct that gave rise to the warning is exactly the same as the
misconduct that is the subject of the subsequent proceedings. From
a practical point of view, employers ought to consider the physical
removal of lapsed warnings from personnel files as a protection
against any suggestion that the warnings played a part in the
disciplinary process.
As was highlighted in the Webb case, the ACAS Code
indicates that final warnings should normally have a time limit of
12 months. If that rule of thumb is followed then an employee with
the guile to wait 13 months between acts of misconduct would
require to be treated as a first offender in each fresh set of
disciplinary proceedings taken against him. From the employer's
perspective, that cannot be right.
Fortunately, the EAT in Webb offers employers some guidance on
this issue. It advises that warnings, and particularly final
warnings, be tailored to the particular circumstances in which they
are issued. If the misconduct justifies it, the 12 month time limit
suggested by ACAS may need to be exceeded. Further, the EAT
suggests that employers should consider extending the period of the
warning with respect to a later act of gross misconduct which is
the same or substantially the same as that for which the earlier
warning was given. What is presumably envisaged by this latter
piece of advice is that a final warning will state that it will
lapse after 12 months other than where the employee is found guilty
of misconduct of the same, or at least similar, nature as the
earlier misconduct, in which case the 12 month period will be
extended.
In offering employers this guidance, the EAT recognised that it
is likely to lead to warnings becoming more complex but considered
that, "if employers are going to be denied the right to have
regard to expired warnings in any circumstances, then they must be
allowed reasonable flexibility to formulate their rules to allow
for exceptional cases."