Veitch Penny LLP - Exeter | Crediton, Devon

Case

Airbus UK v Webb
Employment Appeal Tribunal - (14 February 2007)

Issues

(1) Unfair dismissal
(2) Reasonableness of dismissal
(3) Expired disciplinary warning.

Facts

Mr Webb had been employed as an aircraft fitter by Airbus UK. The company’s disciplinary procedure stated that “theft or fraud or dishonesty involving the company, ex-employees, customers or visitors” could be considered to be gross misconduct.

In July 2004, Mr Webb was found to have fraudulently misused both company time and equipment. He was summarily dismissed for gross misconduct but on appeal was given the lesser sanction of a final written warning. He was told that the warning was to remain on his personnel file for 12 months. He was also told that any incident of further misconduct was likely to lead to dismissal.

On the 28th of September 2005, approximately three weeks after the expiry of the final written warning, he was found with other staff members in a locker area where they appeared to be watching television outside of a permitted break time. Interviews were undertaken with the employees involved. Mr Webb had said that he had been reading a newspaper on a legitimate break, taken outside the normal break time because the group had decided to work through their original break. There was conflicting evidence from the various employees on this point.

Mr Webb was brought to a disciplinary meeting. Mr Webb was summarily dismissed but the other four people involved were not dismissed because they did not have any prior disciplinary record. Instead they were given a final warning. Mr Webb was unsuccessful with the appeal of the disciplinary decision.

At first instance the Tribunal found that the dismissal was unfair. If Mr Webb had not had the previous warning issued against him, then he would not have been dismissed.
The employer appealed the decision to the Employment Appeal Tribunal (EAT).

Decision

The EAT found the case was finely balanced but in the end found themselves bound by the judgment in Diosynth v Thomson. It held that a tribunal is obliged (and not merely entitled) to ignore expired warnings.

Comments

This case sensibly follows the previous judgment in Diosynth v Thomson. If a warning is described as having an expiry date then it should be treated as such. The Chairman in this case sensibly pointed out that when giving warnings particularly final warnings, then employers must make sure they tailor them to the particular circumstances. Whilst it was acknowledged that the ACAS Code of Practice indicates that a final warning should be normally have a time limit of 12 months that need not always be the case. There was in the Chairman’s opinion no reason why the period could not be longer if crucially the nature of the misconduct justifies it. This could particularly be appropriate if the imposition of a lesser penalty is an act of leniency. An employer might also be justified in extending the period of a warning with respect to a later act of gross misconduct which is the same or substantially the same as that for which an earlier final warning was given. The employer must of course ensure that it applies it’s discretion here consistently.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.