M G Webb worked for Airbus as an aircraft
fitter. Previously he had been found washing his car when he was
supposed to be working. Though his employer said that this was
grounds for dismissal he was given a written warning with a term of
12 months.
Thirteen months after this incident he and
four other employees were discovered reading newspapers and
watching television during the working day. Webb was dismissed, but
the other employees were given a formal warning.
Webb took a case to the Employment Tribunal,
which he won. It was appealed by Airbus, but the EAT backed the
original decision.
The EAT found that the conduct itself was
worthy of dismissal, but the fact that Webb was the only employee
fired meant that there was some factor distinguishing his case from
those of the others, and that that was the previously issued
warning.
"Here is an employee who after being fortunate
enough to have a dismissal reduced to a final warning on appeal,
commits a very similar act of gross misconduct shortly after that
warning has expired," said the EAT's ruling. "The misconduct would
have justified the dismissal independently of the warning; to that
extent the warning did not contribute to the decision to dismiss.
Having regard to the history, he was not differently treated from
the other employees; he had been given another chance, and so were
they."
"At the same time, however, it is clear from
the treatment of the other similarly placed employees that but for
the warning, or more accurately, but for the commission of the
earlier offence which gave rise to the warning, Mr Webb would not
have been dismissed," it said.
The EAT followed the guidance of earlier
cases, and interpreted them as meaning not only that an employment
tribunal is allowed to ignore expired warnings, but that it must do
so.
"In our view [the Tribunal] was applying a
very modest and entirely logical extension of the principle
enunciated by the court in [a previous] case. Moreover, we
think that the general thrust of that case, and certainly [two
other] EAT cases is that where but for the expired warning the
dismissal would not have occurred, that dismissal is unfair."
"We confess that we have had some difficulty
deciding whether those two cases were intending to establish that a
tribunal is obliged, and not merely entitled, to ignore expired
warnings, but on balance we think that they were," it said.
The rulings could change the kinds of warnings
that are given to employees. The EAT emphasised that clarity is
essential. "The purpose of giving warnings is to enable the
employee to know where he stands and what is expected of him," it
said. "If the warning is to expire, whether the language be that it
is to be disregarded, ignored or excised from the record, we think
that this would give rise to the expectation that this would be so
for all purposes."
Airbus had argued that the two court cases
mentioned did not oblige Tribunals to come to the conclusion that
the initial Tribunal had come to. The EAT disagreed.
"In an area of this kind where there are two
competing principles, each of which has much to commend it, in my
view it would be inappropriate to dissent from earlier decisions of
this Tribunal, and particularly undesirable to part company with a
decision of the Inner House of the Court of Session with the
consequence that the law in England and Wales would differ from
that in Scotland on this point," it said.
