Buddy says: You will initially need to check the company policy on misconduct and see what the company’s disciplinary procedures are.  If the breach constitutes gross misconduct, the previous expired disciplinary warning can be taken into account when deciding to dismiss an employee, providing that the reason to dismiss is not wholly reliable on the expired warning.  If you have sufficient grounds to dismiss as a result of the current breach, and you are only taking into account the previous misconduct in your decision, the fact that the previous warning has expired, will not make the dismissal unfair.  Please note that in any disciplinary procedure, as well as following any company policy, you will need to ensure that you have complied with the statutory procedures. 

Employer information:  Employees have a right not to be unfairly dismissed (s. 94(1) ERA 1996), so when it comes to deciding what sanction to impose upon an employee for misconduct, employers should also consider other alternatives to dismissal.  The tribunal will ask whether the employer acted within the band of reasonable responses in treating the misconduct as a sufficient reason to dismiss.

Except in cases of gross misconduct, it will usually be unfair to dismiss an employee on the grounds of conduct or capability without adequate warnings having been given.  The ACAS code of practice on Disciplinary and Grievance procedures, suggests generally that first written warnings should remain active for 6 months and final written warnings for 12 months. 

However, in the recent case of Airbus UK Limited –v- Webb (2008) EWCA and CIV 49, the Court of Appeal (CA) held that it was not unreasonable for the employers to have taken into account an expired warning when deciding whether or not to dismiss the employee.

In this case, Mr Webb had been given a previous warning and was informed that further instances of misconduct would result in dismissal.  Less than a month after Mr Webb’s warning had expired, Mr Webb was caught watching TV with other collegues when he should have been working.  Mr Webb was the only one who was dismissed, while his colleagues received final written warnings as they did not have previous disciplinary records.

The Tribunal held that following Diosynth Limited –v- Thompson (2006) IRLR 284, the dismissal was unfair on the basis that an expired warning had to be ignored for all purposes when deciding whether or not to dismiss.  This was upheld by the EAT.

However, the CA disagreed with this, and held that the decision in Diosynth did not mean that an employer can never take into account misconduct which was the subject of a spent warning.  Moreover, the CA found that in Mr Webb’s case, it was not the cumulative effect of the instances of misconduct which had led to his dismissal.  Rather, they found that Airbus had grounds on which to dismiss Mr Webb following his second misconduct alone, and that the earlier misconduct was simply taken into account when considering whether that sanction should stand.  The CA went on to say that misconduct itself is not time limited.

Whilst this clarifies the law on expired warnings, the CA also added that employers should not now be expected to be able to rely on expired disciplinary warnings as a matter of course.