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Lapsed warnings
[ch 9: pages 65-66]It is normally unfair to take expired warnings into account when deciding to dismiss (Diosynth Limited v Thomson [2006] IRLR 284). The only possible exception is where the offence could already have justified summary dismissal, without taking the lapsed warning into account:
Mr Webb was seen with four colleagues watching TV in the locker room during working hours on the night shift. Unlike his colleagues, Webb had already been given one formal warning for misconduct that had lapsed around three weeks before the TV incident. He was dismissed for gross misconduct, but his colleagues all got Final Warnings.
The Court of Appeal said Webb’s dismissal was fair. Dismissal was within the “band of reasonable responses” for all five employees, said the court. It was not unfair for the employer to exercise its discretion to decide on the lesser sanction of a Final Warning for the others who all had clean disciplinary records, and to dismiss Webb because he did not.
Airbus UK Limited v Webb [2008] IRLR 309 CA