Airbus UK Ltd v Webb

An interesting case and one that has potential issues for employers is the recent Court of Appeal decision in Airbus UK Ltd v. Webb which concerned the extent to which a warning could be taken into account by the employer

Facts

In August 2004 the employee had received a Final Written Warning for gross misconduct for the misuse of Company time. The letter confirmed that the warning was for 12 months and after that time would be removed provided his conduct reached certain standards. However if he committed further misconduct the likely outcome would be dismissal.

Some three weeks after the expiry time of the warning the employee and four others on the night shift were found to be watching television outside the normal break time. The employee was dismissed for gross misconduct but not the other four.

The employer submitted that the warning was only one of a number of factors that were considered in reaching a decision. The other four employees were being given the final chance which he had already been given.

The Tribunal was influenced by the Court of Session decision in Diosynth Ltd v. Thomson [2006] IRLR 284 and had it not been for that case the Tribunal would have found the action of the employer to be fair.

The Court of Appeal considered that case which, although not binding (as a Scottish decision) was highly persuasive however, the circumstances were different. In that case the Final Written Warning was one of the factors taken into account and was the one which convinced the employer to dismiss otherwise there would have been no dismissal.

In the current case it was the employee’s subsequent misconduct on its own which was shown by the employer to be the reason for the dismissal. The other four employees received the same treatment as he had previously received by being given a Final Written Warning. Mr Webb having already received that act of leniency through his previous disciplinary was therefore fairly dismissed.

Comment

This case is of some importance in that it shows the difficulties that a company can get itself into by not following its procedures. What is the point of having a gross misconduct rule and then not dismissing? Here the company had failed to dismiss an employee previously for fraudulent waste of time so when a similar situation arose the dilemma was that they had to look at offering similar leniency.

Fortunately the Court of Appeal recognised that they had acted fairly and that it was not unreasonable for them to use the previous lenient act and therefore the issuing of a Final Written Warning as a distinguishing point in the treatment of the employee.

This case confirms that there are certain circumstances when an expired warning could be considered as a contributory factor but not as the principal one.

The fact remains that there are still problems in this approach and employers should always seek advice from the Advice service before using an expired disciplinary warning in future circumstances.

An abuse of time is equivalent to theft. An employee is paid to work during the hours set out where that employee is not working and either claims the time through a clocking system or by tacit payment where they are caught blatantly not working when they should be back at work. The company rules should be quite clear that this is a gross misconduct offence and dismissal is the likely outcome. Employer’s should only show leniency in exceptional cases and the reason for that leniency should be clearly set out in the disciplinary outcome letter to ensure that there is always clear evidence for any variation from policy or procedure.

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