Case Report: Unfair Dismissal - What weight should be given to a previous warning?

That has been a controversial issue in some recent cases.

In Airbus UK -v-Webb the Claimant was employed as an aircraft fitter who had previously been given a final written warning in respect of being found washing his car in company time. It was made clear to him that this was considered gross misconduct. Three months after the expiry of the final written warning Mr Webb was found with a group of colleagues watching television in the locker area during working hours. The employer considered that they were all guilty of gross misconduct. However, they were all given final written warnings apart from the Claimant who was summarily dismissed.

It was claimed that the dismissal was unfair due to the inconsistency of treatment between the employees. The employer’s argument was that it was legitimate to take an expired disciplinary warning into account on the grounds that it was relevant when considering there were mitigating circumstances would mean a lesser sanction than dismissal could be considered.

This argument was rejected. The decision of the Employment Appeal Tribunal was that expired warnings must be ignored.

Following this decision it is essential show that where two or more employees are disciplined for the same offence but given different sanctions no expired warning should be taken into account.