Since our publishing the article below the Court of Appeal has overturned the Employment Appeal Tribunal's decision in this case, ruling that although the final warning given to Webb had indeed expired, his previous misconduct in committing a similar offence could be taken into account.
Since our publishing the article below the Court of Appeal has overturned the Employment Appeal Tribunal's decision in this case, ruling that although the final warning given to Webb had indeed expired, his previous misconduct in commiting a similar offence could be taken into account. Webb, as the article below describes, was dismissed for taking unauthorised breaktimes. Four others with him received final warnings, but unlike Webb they had clean disciplinary records. The Court of Appeal ruled that for all of the five employees gross misconduct was a reasonable position taken by the employer, and so dismissal was an appropriate sanction. It was equally appropriate for the employer to choose not to dismiss 4 who had no previous record, but dismiss Webb who had. In doing so the court decided that it was not the expired final warning that brought about Webb's dismissal, but his misconduct. In the case of the 4, they merely were afforded the same opportunity (not to be dismissed) that Webb himself had previously already had.
It seems then that employee's spent disciplinary warnings may remain on their files to be considered as a general picture of their employment history, but it would seem safe only to dismiss an employee for an offence that is in itself worthy of dismissal in its own right, i.e. not to dismiss an employee for an offence that would normally only have attracted a written warning simply because the employee has similar although spent disciplinary history on his record.
A myhrdept.co.uk user expressed his frustration recently about a member of staff abusing break systems:
"One of our staff has a history for taking unauthorised time off when he should be working. Just over a year ago, he vanished for nearly 40 minutes and we issued him a final warning. Last week, only a month after that warning expired, we found him outside talking to his mates and smoking when he should have been at work. Surely we don’t have to go through the whole thing again?"
Unfortunately you cannot rely on an expired warning. A recent case called Airbus UK Ltd Vs Webb dealt with a similar issue. Airbus dismissed Webb for taking an unauthorised break, al little over 3 weeks after the expiry of a final warning for washing his car in work time. Four other colleagues also taking unauthorised breaks received final warnings. The Employment Appeal Tribunal deduced that Airbus had relied on the expired warning when taking the decision to dismiss Webb rather than issuing a final warning to him too. The dismissal was ruled unfair.
What can we learn from this case?
- Write down your breaks policy and ensure all employees understand it and the consequences of breaching it.
- Ensure the policy is enforced consistently by all managers.
- Do not rely on an expired warning when considering the penalty for breach.
If you have a full disciplinary and dismissal procedure in place (e.g. available to myhrdept.co.uk annual subscribers), check the wording to see whether it allows for an extended warning. In this case the individual cannot be dismissed for his break (unless it is classed as gross misconduct) but bearing in mind his prior similar conduct (having previously received a final warning for unauthorised absence), it may be appropriate, and subject to the Procedure allowing it, to issue an extended new final warning e.g. of 2 years instead of the standard 12 month term. Any recurrences in the 2 year period could result in his dismissal.
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