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 misconduct. He was dismissed The procedure, modelled on the ACAS Code of Practice, provided that the formal written warning would be disregarded after one year. The other employee, with no disciplinary record, was not dismissed. The ET’s majority decision was that the dismissal was unfair. The two lay members held that there were no rational reasons for distinguishing the two cases. The employer should have disregarded the previous record of one of them. Both should have been given credit for an unblemished record. The Chairman of the ET disagreed, holding that the employer was entitled to have regard to the personal file on an indefinite basis. He drew a distinction between the use of the previous record as background and its purpose in ‘totting up’ and said that it would be standing logic on its head to say that the employee who was dismissed was a man of previous good character when there had been a past disciplinary offence, albeit of a different character.
Held: The appeal failed. The ET Chairman was incorrect in the light of the language of the Code and the disciplinary rules: ”Disregard’ must mean what it says and the scope of the formal warning is finite, being on the record for 12 months. In these circumstances the majority view that a reasonable employer should treat the two men equally is one which is entirely rational.’
His Hon Judge Mcmullen QC
 EAT 1124 – 02 – 3001,  UKEAT 1124 – 02 – 3001, EAT/1124/02
England and Wales
Cited – Airbus UK Ltd v MG Webb CA 7-Feb-2008
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.189227