Expired warnings can never be taken into account when deciding whether to dismiss an employee, the EAT has stated in Airbus UK v Webb.
Three weeks after a final written warning expired, Mr Webb committed a similar offence (with four colleagues) to that for which he had previously been warned. He was dismissed. They were not. The employment tribunal, by a majority, found the dismissal was unfair because of inconsistent treatment. The employer appealed, on the basis that it was legitimate for an employer to take an expired disciplinary warning into account.
Reciting the competing arguments, Elias P. said he considered it to be a finely balanced point (para. 56). That being the case, he chose to follow the Scottish Court of Session case of Diosynth v Thomson (see bulletin 1/2/06), and held that "a tribunal is obliged, and not merely entitled, to ignore expired warnings" (para. 60)
Airbus UK v Webb