A recent case illustrates how careful employers must be when dismissing employees, even those with extremely poor disciplinary records!

The case in question involved Mr P who had a long history of poor performance and disciplinary issues.  He had been subject to formal action 17 times, the most recent of which were a 9 month warning because he failed to make contact with the employer whilst he was off sick, and a 3 month warning for using company equipment during company time in order to prepare materials for his personal use.  The final straw came when he was seen with mobile phone in hand on the shop floor – a practice strictly prohibited by the employee handbook. 

The company decided to dismiss Mr P with 12 weeks’ pay in lieu of notice.  Despite his long and poor record, at the time he was invited to the disciplinary hearing, no live warnings were on his file.

Mr P argued that as he had no live disciplinary warnings, his employer should not have taken the previous warnings into account when considering whether to dismiss him.

Two previous cases are relevant:

In the case of Diosynth and Thompson an employee was given a 12 month warning for failure to carry out a safety procedure.  A few months after that warning had expired there was a fatal explosion.  The investigation found Mr Thompson and his colleagues had failed to carry out the exact same safety procedure.  Unsurprisingly perhaps, he was dismissed because of the previous warning, but the Court of Session in Scotland decided that the employer could not rely on the previous written warning as a determining factor in deciding to dismiss for misconduct.

In Airbus v Webb, Mr Webb was given a 12 month final written warning; 3 weeks after the expiry of that warning he – together with several of his colleagues – were disciplined for being away from the workplace whilst they should have been working.   They were all found guilty of gross misconduct but Mr Webb was dismissed while his colleagues, who had no prior disciplinary warnings, were given final warnings.  The Court of Appeal said that the case of Diosynth did not mean that expired warnings could never be taken into account.  It said that in Diosynth the other factors taken together would not have justified a dismissal without a live warning.  However, on the facts of the Webb case, the employee’s misconduct on its own was the principle reason for the dismissal and it was not unreasonable for Airbus to have taken into account the previous misconduct which had been the subject of an expired warning.

So back to our case of Mr P!  He argued that where an employee is guilty of misconduct, but not gross misconduct, which in itself does not justify dismissal, it is not reasonable for the employer to rely upon earlier misconduct as the principle reason for dismissal.

The Employment Appeal Tribunal did not agree!  It dismissed Mr P’s appeal and said that his employer had been entitled to take into account his previous record.  The company had decided that his poor disciplinary record illustrated a lack of understanding from Mr P about the consequences of his action.  Furthermore, the company didn’t believe that Mr P was likely to change, and his manager’s prediction as to how he was likely to conduct himself in the future was relevant when the company made the decision to dismiss him.

These cases show us that careful consideration must be given to expired warnings before deciding to dismiss an employee.  It seems that only sometimes will it be acceptable for an employer to rely on expired disciplinary warnings when deciding whether to dismiss or not.  The best course of action is to consult a specialist employment lawyer where there is any shadow of doubt.