Be Warned

For many years the law has been certain in relation to warnings dished out to employees. A verbal or written warning normally has a life of six months and a final written warning a life of twelve months. Once a warning has expired, it could not be relied on by an employer to take an employee to the next level.

Let’s take an example. Bill is regularly late for work. His employer takes disciplinary action and Bill ends up with a written warning. Two months later Bill is yet again late for work for no good reason. His employer follows the current disciplinary procedure and because Bill already has a live written warning, he is given a final written warning. Thirteen months later, Bill is again very late for work with no good reason. His written warnings have all expired so Bill cannot be dismissed fairly. All his fed up employer can do is issue Bill with either a verbal or written warning.

However, the law is no longer certain following a Court of Appeal decision in the case of Airbus UK and Webb.

Mr Webb decided to wash his car when he should have been working. After an appeal hearing, he was given a final written warning in a letter and he was told it would expire at the end of August 2005.

On 20 September 2005, Mr Webb and some colleagues were watching TV at work when they should have been working. Mr Webb was sacked and his colleagues who had good disciplinary records were given final warnings.

Mr Webb claimed unfair dismissal and won before the Employment Tribunal and Employment Appeal Tribunal. In short, the company has taken his expired warning into account in deciding to dismiss him. His colleagues who had no warnings were not sacked. The Tribunals decided that relying on this old warning made the dismissal unfair.

The Court of Appeal in a radical decision, found for Airbus and held that Mr Webb had been fairly dismissed. A victory for common sense perhaps? However, employers should not get too excited. While the existence of an expired warning may be taken into account in deciding the overall fairness of the decision, an employer placing heavy reliance on an old warning to justify a dismissal will be treading on thin ice. 

For further information or advice, please contact Jon Loney

Published 14/02/2008. The author of this article is Jon Loney