Court of Appeal
Published February 26, 2008
Airbus UK Ltd v Webb
Before Lord Justice Mummery, Lord Justice Thomas and Mr Justice David Richards
Judgment February 7, 2008

An employment tribunal was entitled to find that an employee’s dismissal for misconduct was fair, even though the employer, in his response to the reason for the dismissal, had taken account of previous similar misconduct which was the subject of an expired final warning.

The Court of Appeal so held in a reserved judgment when allowing the appeal of the employer, Airbus UK Ltd, from the Employment Appeal Tribunal (Mr Justice Elias, President, and Ms G. Mills) ([2007] ICR 956), which found in favour of the employee, Michael G. Webb, and dismissed the employer’s appeal from the Bristol Employment Tribunal’s finding, by a majority, on June 16, 2006, that it had unfairly dismissed the employee from his employment as an aircraft fitter at its Filton site on September 20, 2005.

Mr Thomas Linden, QC, for the employer; Mr Andrew Short and Ms Joanne Sefton for the employee.

LORD JUSTICE MUMMERY said that the employee was subject to the employer’s written disciplinary procedures, entitling it to dismiss summarily for gross misconduct, defined as “theft or fraud or dishonesty involving the company, its employees, customers or visitors”. In exceptional cases, an alternative to dismissal was a final warning.

In August 2004, the employee received by letter a final warning for gross misconduct for fraudulent use of company time. The letter confirmed that the warning would be placed on his personal file for 12 months and subsequently removed provided his conduct reached certain standards. The letter concluded that the likely consequence of further misconduct was dismissal.

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

The employer submitted that the expired final warning was only one of the circumstances of the dismissal. Had it not been for the majority’s understanding of the decision of the Court of Session in Diosynth Ltd v Thomson ([2006] IRLR 284), the employment tribunal would have held unanimously that the dismissal was fair. The employee had already been given the chance that was being given to the other four involved in the later misconduct.

In his Lordship’s view, Diosynth, strictly speaking, was not binding on the court but it was highly persuasive. However, that case was addressing a different issue: there the position of the employer was that the expired final warning tipped the balance in favour of dismissal as the other factors taken together would not have justified dismissal.

In the present case, the employee’s subsequent misconduct on its own was shown by the employer to have been the principal reason, for dismissal. The relevance of the previous misconduct and the expired warning was to the reasonableness of the employer’s response to the later misconduct, namely, whether the dismissal for the later misconduct was within the range of reasonable responses.

In that context, there was no disparate treatment of the employees involved. It was the first misconduct of the four who were not dismissed but who received a final warning. In the case of Mr Webb it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning previously.

The employment tribunal wrongly held that Diosynth was authority for the proposition that a previous spent warning should be ignored for all purposes. That case did not require it to hold that the dismissal was unfair.

Had it not misunderstood that case, the employment tribunal would have held the dismissal was fair. The appeal tribunal should have allowed the employer’s appeal.

Lord Justice Thomas agreed and Mr Justice David Richards gave a concurring judgment.

Solicitors: Ms Lucy Atherton, Victoria; Rowley Ashworth, Wimbledon.

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