Airbus UK Ltd v Webb

Under section 98(4) of the Employment Rights Act 1996, fairness of a misconduct dismissal depends on all the circumstances, equity and the substantial merits. An expired final written warning does not create an automatic rule that a later dismissal is unfair.

The warning is spent as a disciplinary penalty and cannot continue as a conduct reason for dismissal. However, the earlier misconduct may remain relevant when assessing whether dismissal for later similar misconduct fell within the range of reasonable responses. A difference in sanction is not unfair disparity where one employee has repeated misconduct after receiving leniency and the others are committing a first offence.

Airbus dismissed Mr Webb for watching television during company time. About three weeks earlier, a 12-month final written warning for similar misuse of company time had expired. Four colleagues involved in the later incident received final written warnings rather than dismissal.

The Employment Tribunal, by a majority, held that the dismissal was unfair. It considered itself bound by [2006] IRLR 284 to disregard the expired warning for every purpose. The Employment Appeal Tribunal dismissed Airbus's appeal in proceedings identified as UKEAT/0453/06/DA.

The central issue was whether an employer must always disregard an employee's earlier misconduct when the final warning imposed for that misconduct has expired.

1. Appeal allowed unanimously. The Employment Tribunal erred in treating the dismissal as necessarily unfair. Mr Webb's unfair dismissal claim was dismissed.
2. Section 98(4) of the Employment Rights Act 1996 required the Tribunal to assess reasonableness by reference to all the circumstances, equity and the substantial merits. Its broad language imposed no rule that prior misconduct must be ignored merely because the time-limited final warning imposed for it had expired.
3. The expiry of the warning meant that the warning penalty itself was spent. It could not be used as a continuing conduct reason for dismissal. It did not, however, necessarily erase the historical fact of the earlier misconduct. That fact could be relevant to whether dismissal for later similar misconduct was within the range of reasonable responses.
4. Diosynth Ltd v Thomson, [2006] IRLR 284, was distinguishable. In that case the expired warning had tipped the balance towards dismissal when the remaining factors would not have justified it. Here, the later gross misconduct was the reason shown for dismissal and was independently capable of justifying dismissal. Diosynth did not establish that any consideration of earlier misconduct after expiry of a warning necessarily makes a dismissal unfair.
5. There was no material disparity of treatment. The four colleagues received the lesser sanction for a first incident of misconduct. Mr Webb had already received that leniency for an earlier similar incident. David Richards J added that the decision should not encourage routine reliance on expired warnings; fairness did not admit of exact prescription.

• Court of Appeal (Civil Division): Allowed Airbus's appeal and dismissed Mr Webb's claim: [2008] EWCA Civ 49.
• Employment Appeal Tribunal: Dismissed Airbus's appeal from the Employment Tribunal on 14 February 2007: UKEAT/0453/06/DA.
• Employment Tribunal: By a majority, held that Airbus had unfairly dismissed Mr Webb in a judgment sent to the parties on 16 June 2006.