The court considered the dismissal by an employer of an employee for a disciplinary offence when he would not have been dismissed but for an earlier warning which had expired.
Held: The company’s appeal succeded. The court summarised the balance as follows: ‘On the one hand, if the employer has chosen to impose a time-limited final warning, it can be argued that it would be unfair to allow him to go back on that and to escape from the consequences of his decision to deal with an employee in that way. On the other hand, if an employee has been previously disciplined for misconduct for which he could have been fairly dismissed, it can be argued that it is not necessarily unfair for the employer to take into account, on a later occasion of similar misconduct, the fact that employee has done this sort of thing before. ‘The earlier cases did not deal with the situation as here where the previous offence was very similar to the one no at issue. The tribunal had ‘erred in law in holding that it was required by the authorities to hold that Airbus acted unreasonably in dismissing Mr Webb for a conduct reason, when the reason for dismissal shown by Airbus was the later misconduct and not the expired final warning given in respect of previous misconduct by Mr Webb. ‘
Citations:
[2008] EWCA Civ 49, [2008] IRLR 309, [2008] ICR 561
Links:
Statutes:
Employment Rights Act 1996 98(4)
Jurisdiction:
England and Wales
Citing:
Cited – Diosynth Limited v Morris Thomson IHCS 1-Feb-2006
. .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Marshalls Clay Products Ltd Pearce Clarke, Sutton, Hoy v Caulfield and others, Huw Howatson Ltd Frank Studdon Ltd, Potting Constuction Ltd, Hanlin Construction EAT 25-Jun-2003
Conjoined appeals were considered on the issue of whether holiday pay arrangements met the requirements of the Working Time Regulations, where holiday pay was in some was rolled up with normal pay.
Held: Five categories were identified. Those . .
Cited – UK Coal Mining Ltd v Raby EAT 30-Jan-2003
EAT Two employees had fought at work. One had an expired formal written warning on his record. It had been reduced on appeal from a final warning. His disciplinary offence was of a different nature than the later . .
Cited – William Grant and Sons Ltd v Devlin EAT 25-Mar-2004
The ET had decided that the employee’s dismissal had been unfair on grounds including that the employer had taken account of an expired warning.
Held: The decision was upheld. Lord Johnston said: ‘a final written warning, which is given a time . .
Cited by:
Cited – Sarkar v West London Mental Health NHS Trust CA 19-Mar-2010
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 22 November 2022; Ref: scu.264120