There has been recent guidance from the Court of Appeal on whether misconduct warnings which had expired under the terms of an employment contract could still be taken into account when deciding whether to dismiss an employee. 

In the recent case of Airbus v Webb, three employees were each found guilty of gross misconduct and the company was considering dismissal.  Two of the employees had clean disciplinary records and successfully argued that this was sufficient mitigation to avoid dismissal.  The third had received a warning previously but this had expired sometime before under the terms of his contract.  He was treated differently to the others and was dismissed. 

He brought a claim and was found to have been unfairly dismissed by the Employment Tribunal and the Employment Appeal Tribunal.   The company appealed successfully and the Court of Appeal overturned the decision stating that the warning was part of the 'history' of the employee and that it was reasonable to take this into account. 

Simon Thomas, partner specialising in employment law comments “This decision restores some flexibility into the issue but it would not have been lawful for the employer to have used the previous warning for “totting up purposes”.  It could also be used in a subsidiary way such as in redundancy selection criteria.