Charles Millett on expired warnings

May 20 2008 by Vicky Anderson, Liverpool Daily Post

AN EMPLOYER can occasionally consider an employee’s past conduct when dismissing them, even if that conduct was the subject of a written warning which has since expired, according to a recent Court of Appeal ruling.

Until recently, it had commonly been understood expired warnings could never be relied upon when justifying dismissal.

In Airbus UK Limited v Webb (2008), the Court of Appeal was asked to consider whether the claimant’s dismissal was unfair. He had been dismissed for gross misconduct.

Four other employees were also found guilty of the same act of misconduct but were given final written warnings instead.

Previously, the claimant had been found guilty of gross misconduct around 13 months earlier. He had been dismissed but on appeal this was changed to a final written warning. This had expired when the new incident arose.

The employer’s justification for dismissing the claimant while not dismissing his four colleagues was due to their previous good disciplinary records, in contrast to his record.

The Court of Appeal ruled the act of misconduct justified dismissal in the claimant’s case, but not in the case of his four colleagues because their previously good records were taken into account.

This should not be seen as a licence for employers to rely on expired warnings. They will be relevant only in limited circumstances.

CHARLES MILLETT is an employment law specialist at Morecrofts.