Airbus UK Ltd v Webb: [2008] EWCA Civ 49

CA: Mummery and Thomas LJJ, David Richards J: 5 February 2008

In July 2004 the claimant was summarily dismissed for gross misconduct after he had been washing his car when he should have been working. On appeal the lesser sanction of a final written warning, expressed to remain on his file for 12 months, was substituted and he was warned that further misconduct was likely to lead to dismissal. In September 2005, three weeks after the expiry of that written warning, the claimant, together with four fellow employees, was disciplined for being away from the workplace when he should have been working. The employer found them all guilty of gross misconduct. The claimant alone was dismissed, whereas the other employees, who had no prior disciplinary record, were given final warnings. An employment tribunal upheld the claimant’s complaint of unfair dismissal, deciding that, although the claimant’s conduct justified dismissal, the employer ought not to have taken into account the expired warning when considering what sanction to impose. The Employment Appeal Tribunal dismissed the employer’s appeal.

The employer appealed on the ground that within the terms of section 98(4) of the Employment Rights Act 1996 the employer’s decision to dismiss was reasonable.

The Court of Appeal held:
An employer’s dismissal of an employee for misconduct could be fair, within section 98 of the Employment Rights Act 1998, even though the employer, in his response to the reason for the dismissal, took account of the employee’s previous misconduct which was the subject of an expired final warning. The previous misconduct, the fact that a final warning had been given in respect of it and that the final warning had expired when the later misconduct occurred were all objective circumstances to be considered relevant to whether the employer’s actions were reasonable or not and, within the broad terms of subsection (4), went to the equity, merits and fairness of the particular case. The claimant’s subsequent misconduct on its own was shown by the employer to have been the reason, or principal reason, for his dismissal and not the expired final warning nor the earlier misconduct in July 2004, which were relevant only to the reasonableness of the employer’s response to dismiss following the subsequent misconduct. Furthermore, the claimant was not treated differently from the other four employees who received the lesser penalty of a final warning, as the claimant was dismissed for repeated misconduct having received the lesser penalty on the previous occasion.

The appeal was allowed.

Appearances: Thomas Linden QC (EEF Legal Services) for the employers; Andrew Short and Joanne Sefton (Rowley Ashworth) for the claimant.