The Court of Appeal has allowed the appeal in the above case concerning an employer's reference to an expired warning when deciding to dismiss.

One month after the expiry of a final written warning for misuse of company time, Mr Webb was discovered watching television during working hours with some work colleagues.  His colleagues who had no previous final warning were not dismissed but Mr Webb was.  The employer justified dismissal by referring to Mr Webb's recently expired warning.

The Court of Appeal stated that it would not necessarily make a dismissal unfair if employers took expired warnings into account.  It stated, however, that there would have to be exceptional circumstances for the dismissal to be found fair and it would be necessary for the misconduct to be of a similar type that was the subject of a final written warning,

Readers  should note that it  would be helpful to draft   disciplinary procedures to take into account   exceptional circumstances,  such   as increasing the length of final warnings where deemed necessary.

Finally, it should be noted that this decision conflicts with the decision of the Court of Session in Diosynth Ltd v Thomson, upon which the EAT in the Webb case held that the dismissal was unfair, because the warning had expired.  It will be interesting to see how tribunals in Scotland will apply the apparently conflicting decisions.

Click here -Click here -for both cases