United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Thomas Linden (of Counsel) Instructed by: EEF Legal Services Broadway House Tothill Street LONDON SW1H 9NQ
For the Respondent	Mr Andrew Short (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon LONDON SW19 1SE

SUMMARY

Unfair dismissal – Reasonableness of dismissal

The employer dismissed the employee for not working when he ought to have been. Others in the same position were not dismissed. The disparity of treatment was because he had been given a final warning for a similar act of misconduct some 13 months earlier whereas the others had clean disciplinary records. However, the final warning given with respect to the earlier misconduct had expired after 12 months. The majority of the Employment Tribunal considered that although dismissal would have been fair had all been dismissed, it was not permissible to distinguish him in this way because once the warning had expired, he had to be treated as someone with a clean record. The warning could not be relied upon for any purposes. They considered themselves bound to reach this conclusion in the light of the decision of the Inner House of the Court of Session in Diosynth Ltd v Thomson[2006]IRLR 284.

The Appellant contended that Diosynth was distinguishable, alternatively it was wrong and improperly fettered the discretion which tribunals should exercise. The appeal was rejected on the grounds that even if Diosynth was strictly distinguishable, the decision of the Tribunal was consistent with the principle established in that case, and with other EAT cases. Further, given that the arguments for and against the Diosynth approach were finely balanced, it was not appropriate to depart from the recent line of authorities, particularly since this would lead to different rules applying in England and Wales from those applying in Scotland.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. Is a dismissal necessarily unfair if the employee would not have been dismissed but for the employer taking into account an expired disciplinary warning? That is the issue arising in this case.
2. Due to the sickness of the employer's representative, the case was heard by the President and one lay member only. This was with the requisite consent of both parties.

Background

3. The essential facts are as follows. The employee, the Respondent to this appeal, was employed as an aircraft fitter at the employer's Filton site. He was subject to the Appellant's disciplinary procedure. That procedure, as is typically the case, provided that there could be dismissal for gross misconduct and gave as an example of such misconduct "theft or fraud or dishonesty involving the company, its employees, customers or visitors".
4. It was then provided that in appropriate cases a warning may be given as an alternative to dismissal:

"As an alternative to dismissal and only in exceptional cases where mitigating circumstances make the dismissal inappropriate with the agreement of both the head of department and the employee this may be reduced to a stage three warning."

5. In July 2004 the Claimant was summarily dismissed for gross misconduct. He had allegedly fraudulently misused both company time and equipment. Apparently he had been washing his car when he should have been working. He was summarily dismissed but on appeal a lesser sanction, a final written warning, was imposed. This was expressed to remain on his personal file for 12 months. He was sent a letter when he was reinstated informing him that further misconduct was likely to lead to dismissal.
6. On 20 September 2005, some three weeks after the expiry of that written warning, the employee was found with other staff members assembled in a locker area where they appeared to be watching television. He was not at that time on his normal break.
7. Mr Cawte, the project manager, and Mrs Biggs, from Human Resources, conducted a series of interviews with the people involved. The employee said that he was reading his newspaper and not watching television and that he was on a legitimate break because, although it was outside the normal break period, the group concerned had all decided to work through the usual break because it was not an appropriate time to stop the manufacturing process. There was conflicting evidence as to whether the men had indeed worked through their tea break but there was no evidence that they had obtained permission to do that.
8. Following that initial investigation Mr Webb was summoned to a disciplinary meeting. He was represented at that meeting. It was conducted on the employer's side by the production unit manager, Mr Evans, who was assisted by Mrs Biggs. Mr Evans did not believe the accounts given by members of the group about the re-timing of the tea break. He considered that they were all guilty of gross misconduct and Mr Webb was summarily dismissed. The other four colleagues involved were not dismissed because they had no prior disciplinary record. They were given a final warning and removed from the night shift for a minimum period of six months.
9. The employee appealed, but that appeal failed. His employment ended on 10 November 2005.
10. The Tribunal properly directed themselves in accordance with the classic case of British Home Stores Ltd v Burchell [1978] IRLR 379. They concluded that the employer had genuinely believed that misconduct had been committed and that it was a reasonable view for Mr Evans to take in the circumstances. They summarised their reasons as follows:

"17. …We were impressed by the fact that Mr Evans was assessing the evidence in the light of his own experience within the company and we noted his view – which was subsequently confirmed to some extent by other evidence given before us – that it was extremely rare for the workforce to decide to forego a permitted break at the appointed time, and work through in order to take time off later. There was, as we have pointed out, no suggestion that line management had been approached for approval of this course; the immediate reaction upon detection was for all those in the area to pack up and go back to work immediately without comment, and there was evidence – albeit evidence challenged by other evidence – that things had been quiet during the period that the men were supposed to have been working, according to their account of matters. We therefore unanimously concluded that it was not unreasonable for Mr Evans, and Mr Morrison after him, to conclude that the Claimant and his colleagues had not been working when they should have been. We noted the point about the emphasis placed during the course of the investigation upon whether the Claimant was actually watching TV or looking at his newspaper at the time, but despite that we were satisfied that although a good deal of time and effort was devoted to that question, it was not the fundamental question in the Respondent's mind. The real issue in this case was not whether the Claimant was watching TV or reading his newspaper, it was whether the Claimant was away from his place of work at a time when he should have been working and this point was made during the course of cross-examination by Mr Evans. We unanimously concluded that in the circumstances the Respondent's belief in the misconduct alleged was not only genuine but reasonable, and that it was reached after a reasonable investigation."

11. The Tribunal then focused on the question whether dismissal was a reasonable sanction in all the circumstances. The employee had contended that in view of the decision of The Inner House of the Court of Session in Diosynth Ltd v Thompson [2006] IRLR 284, that sanction could not properly be imposed. The other four employees caught in a similar position had not been dismissed because they had no disciplinary record. Mr Webb's argument was that he could only be considered to have such a record if the conduct which led to the expired warning was taken into account. The treatment of the other four demonstrated that his dismissal would not have occurred but for the employer taking that conduct into consideration. That necessarily rendered the dismissal unfair.
12. The Tribunal first considered whether, independently of that factor, the dismissal would have been a reasonable sanction under s.98(4) of the Employment Rights Act 1996. This provides that when tribunals consider whether or not a dismissal is fair, they must have regard to all the circumstances. The Tribunal unanimously concluded that it would have been fair. The conduct was gross misconduct under the disciplinary procedure.
13. They then went on to consider whether that conclusion was affected by the decision in the Diosynth case. By a majority they held that it was and that since the decision to dismiss was dependent upon taking account of an expired warning, Diosynth required that the dismissal should be treated as unfair.
14. The minority member accepted an argument advanced by the employer which was designed to distinguish Diosynth. It was submitted that, unlike Diosynth, the warning here was not taken into account as part of a 'totting up' procedure; it was not, in other words, a case where the conduct did not merit dismissal save when put in the context of the employee's disciplinary record. Rather it was a case where the conduct merited dismissal and the issue was whether there were mitigating circumstances which ought to have caused the employer to impose some lesser sanction. The significance of the warning was that it negated the justification for allowing mitigation. The Tribunal were not obliged to follow the Diosynth line of reasoning.
15. The majority disagreed in the following terms:

"25. The majority, while sympathising to some extent with that argument, concluded that upon close analysis it simply did not stand up. Diosynth, relying on earlier authorities, effectively says that a previous spent warning should be ignored for all purposes. In this case the warning was not ignored; on the contrary, the fact that there had been such a warning features largely in the investigatory process. In the final analysis, if the Claimant had not had that previous warning against him, then he would not have been dismissed but would have been treated like his colleagues and subjected to some lesser penalty. To quote the Diosynth decision at paragraph 22 in the IRLR report:

"The appellants had made it clear that the Respondent would not have been dismissed if he had not been the subject of a previous warning. The employment tribunal took the view that the warning had not been used in the 'traditional' sense of forming the basis for taking disciplinary action of a more severe kind than might have been taken had there been no warning. That was not right. By tipping the balance in favour of dismissal the warning was used as a basis for taking more severe disciplinary action than otherwise might have been taken …"

That seems to us very much to be this case, and in those circumstances the majority of us concluded that for that reason this dismissal was in fact unfair." (italics added.)

The grounds of appeal.

16. In substance the grounds of appeal seek to rely upon the decision of the minority. Mr Linden QC, counsel for the Appellant, submits that the majority was not bound by Diosynth, which was distinguishable, and that if it was not distinguishable, Diosynth was wrong and ought not to be followed.
17. The issue therefore is whether an expired warning - or more accurately the conduct in respect of which the warning was given - must be treated for all purposes as if it had never occurred so that if it is considered, and is decisive of the decision to dismiss, that dismissal is inevitably unfair.
18. We were referred to four authorities in relation to this matter. The first was the Diosynth case itself. Mr Thompson was employed by Diosynth as an operator at their chemical processing plant. Health and safety was of paramount importance and the employees were trained in various procedures. The disciplinary procedure provided that "serious breach of safety rules potentially involving loss of life or limb" and "flagrant breach to follow company documentary procedures and regulations" would be treated as acts of gross misconduct.
19. In July 2000 Mr Thompson was disciplined for failing to carry out a particular process, which was known as 'inerting'. A chemical leakage resulted. He was warned and told that the warning would remain on his record for a period of 12 months. He gave an assurance that the incident was an isolated one and that he would carry out the correct procedures in future.
20. In November 2001 there was an explosion at the factory and an operator was killed. Subsequent investigations revealed that Mr Thompson was one of eighteen operators who had failed properly to carry out the inerting process. In his case he had failed on three occasions, and moreover, had falsified records to cover up his failure.
21. It was decided, following a disciplinary hearing, that he should be summarily dismissed. The employers considered he would not positively respond to a further warning and that additional training would not provide a suitable remedy since he had been trained in the relevant procedures and he fully understood them. The letter of dismissal did, however, make it clear that but for the previous warning, Mr Thompson would not have been dismissed.
22. The Employment Tribunal, by a majority, considered that the dismissal was fair and that the employers were entitled to have regard to the relevant history. The minority member considered that the expired warning should not have been taken into account. The Employment Appeal Tribunal agreed with that view and the Court of Session dismissed the employers' appeal.
23. The arguments advanced before the Court were very similar to those advanced before us. Mr Truscott QC, counsel for the employers, argued that the EAT had wrongly sought to limit the range of matters the employment tribunal could consider, whereas Mr Napier QC, counsel for the employee, submitted that as a matter of principle an employer was not entitled to take into consideration as a determining factor a time expired warning.
24. The Court preferred Mr Napier's submissions. The key findings of the Court of Session are found in the judgment of Lord Philip at paras 27 and 28:

"In this case the relevant warning was not stated to remain in force for an indefinite period but, according to the letter of 20 July 2000, was to stay on the Respondent's record for 12 months, a period which had expired before the acts of misconduct took place. Nevertheless, in regarding the warning as tipping the balance in favour of dismissal, the appellants acted as if it remained in force beyond the expiry of the 12-month period. Their position was that the other factors, taken together, would not have justified that course of action. In these circumstances, the majority of the employment tribunal were, in our view, wrong to say that the warning was not used in the 'traditional' sense of forming the basis of more severe disciplinary action than might otherwise have been taken. It clearly was.

The Respondent was entitled to assume that the warning letter meant what it said, and that it would cease to have effect after one year. In seeking to extend the effect of the warning beyond that period the appellants, in our view, acted unreasonably. We therefore agree with the conclusion of the Employment Appeal Tribunal that the Respondent was unfairly dismissed."

25. Mr Linden also drew our attention to what he submits is an important finding of the Court at para 22. This was reproduced, so far as is material, in para 25 of the Tribunal decision and is set out above (para 11). He submits that this case is different to Diosynth because here the warning was not the basis for taking a more severe disciplinary action than the conduct otherwise justified; rather it was a basis for not showing leniency to conduct which fully merited dismissal. He contends that the majority were wrong to consider that they were bound by Diosynth to find as they did. Properly analysed, Diosynth did not say that spent warnings can in no circumstances have any relevance; it was not dealing with their potential relevance when the employer was considering whether to show leniency to the employee.
26. The second decision is William Grant & Sons Ltd v Joseph Devlin EATS/0074/03, a decision of the EAT sitting in Scotland (the Honourable Lord Johnston presiding) which was cited with approval in Diosynth. The employee was profoundly deaf. He had been given a final written warning in July 1998 for allegedly touching female employees in intimate places. The warning was said to run for one year. A similar incident occurred in February 2001 and, following a complaint by the female employee concerned, there was an investigation and he was dismissed.
27. The Employment Tribunal found the dismissal to be unfair, partly because no weight had been given to the fact that there was clear evidence of previous consensual physical contact between the complainant and the employee, and partly because regard had been had to the warning which had long since expired. The Employment Appeal Tribunal rejected an appeal from the employer. At paras 10-11 they said this:

"In our view, a final written warning, which is given a time limit, becomes null and void at the expiry of that time limit and should not be used for any purpose. Accordingly, we agree with the Tribunal that the employer should not have taken this into account and undoubtedly did. We also consider that the general view to be taken of the apparent conduct of the Respondent, is mitigated in this case by the other factors which we have mentioned which the employer left out of account but which the Tribunal said they should have considered.

We are therefore driven to the view, that, while the matter could be arguable both ways at first instance, the Tribunal reached a decision they were entitled to reach upon the evidence before them and, we will accordingly uphold it.

28. Mr Linden submitted that this formulation was too wide and that the Tribunal there was not concerned with the question of whether an expired warning was relevant to the issue of mitigation. Furthermore, he contended that para 11 showed that the EAT was not in fact concluding that an expired warning could never be taken into account as a matter of law, but rather that the Tribunal had been entitled to take the view that it should have been ignored by the employer in the circumstances of that case.
29. The third authority is the case of UK Coalmining Ltd v Raby EAT/1124/02 another decision of the EAT (HHJ McMullen QC presiding). The employee was dismissed following a fight in a pit where he was working. The employee agreed that he was the instigator to the extent that he had used some physical force but contended that it was a mere tap and that there had been retaliation to that. He had been subject to a written warning "which will be retained on your record for twelve months". Initially this had been a final warning but it was reduced to a formal written warning.
30. The employers dismissed him but not the other participant to the fight. The reason for drawing the distinction between them was that the employee had struck the first blow and, in addition, he had a disciplinary record and the other man did not.
31. The majority in the Employment Tribunal did not consider that these two factors justified the disparity of treatment in the circumstances, and in particular concluded that since the rule provided in terms that the warning would be disregarded once it had expired, it was not legitimate to use it as a distinguishing feature at all.
32. The Chairman of the Tribunal, who was in a minority, drew "a distinction between the use of previous record as background and its purpose in totting up". That is essentially the basis on which it is said that Diosynth should be distinguished in this case. The Chairman considered that a reasonable employer could properly have regard to it in the former context.
33. The Employment Appeal Tribunal agreed with the majority and dismissed the employer's appeal. They said this (para 29)

"In our judgment the Chairman's view is incorrect by reference to the language of the code and the disciplinary rules of the Respondent. Disregard must mean what it says and the scope of the formal warning is finite, being on the record for 12 months. In those circumstances the majority view that a reasonable employer should treat the two men equally is one which is entirely rational."

A little later in their judgment, at paras 32-33 they say this:

"In the circumstances we consider that this difficult case has resulted in a judgment which was freely open to the majority of the Employment Tribunal….

In our judgment this was a difficult decision to come to but is a question of fact for the majority and the minority. We detect no irrationality in its decision and we uphold the decision of the majority."

34. Mr Linden accepts that that this case is one where it was considered inappropriate to have regard to the warning even in the context of determining whether there were mitigating circumstances which justified a more lenient penalty than dismissal. To that extent the issue was identical to that arising here. But he contends that paras 32-33 indicate that the Employment Appeal Tribunal merely found that an employment tribunal was entitled to reach the conclusion that the warning should be disregarded for all purposes, not that it was obliged to find that the employer had to disregard it.
35. He says that in this case the majority in the Employment Tribunal plainly acted on the premise that they were compelled to conclude that the employer had to disregard the warning, and this is what dictated the decision of the majority. Had they recognised that they were not obliged to disregard it, they would plainly have reached a different conclusion.
36. He also notes that the warning in Raby was to be disregarded, whereas in this case it is provided that it should be removed from the file.
37. Summarising these observations, therefore, he accepts that Diosynth does establish that a tribunal is obliged to disregard an expired warning where the effect of taking it into account is to alter what would otherwise be a sanction short of dismissal into a dismissal. It does not, however, oblige a tribunal to ignore the warning where the issue is whether an employer who is justified in dismissing for the misconduct in issue is considering whether to take a more lenient approach. Furthermore, he contends that neither Raby nor William Grant are inconsistent with his argument since in both although the court made observations about the inappropriateness of taking into account expired warnings, they were only establishing that an employment tribunal was entitled to take the view that they should be ignored in the particular circumstances of the case. Neither sought to lay down a blanket rule that they should never be taken into consideration, and consequently they did not support the proposition that a dismissal which would not have occurred but for taking the expired warning into account was necessarily unfair.
38. Mr Linden's alternative ground of appeal makes a more root and branch attack on Diosynth. He contends that it is a very well established interpretation of s.98(4), rooted in the language of the section itself, that tribunals should consider all the circumstances of the case when deciding whether a dismissal is fair, and that the adoption of rigid rules should be eschewed.
39. He relied upon such well known authorities as Iceland Frozen Foods v Jones [1983] ICR 17; Foley v Post Office [2000] ICR 1283 and the recent decision of the Court of Appeal in Taylor v OCS Group Ltd. [2006] ICR 1602, paras 27 and 43-48.
40. In Taylor the Court held that tribunals ought not to draw hard and fast distinctions between appeals which are full re-hearings and those which are reviews, as had been suggested by earlier authorities, and should simply focus on the statutory test of asking whether the disciplinary procedures were fair taken overall. One reason for rejecting the earlier approach was that it placed an unjustified fetter on tribunals when they were exercising their judgment under s.98(4): see the judgment of Lady Justice Smith at para. 44. Mr Linden contends that Diosynth and, in so far as they adopt a similar line, William Grant and Raby, are inconsistent with that sound approach.
41. In support of this submission he relies upon an early decision of the EAT - the fourth case relevant to this issue cited to us - namely Charles v Science Research Council (1977) 12 ITR 208 (Phillips P presiding). The employee in that case had been involved in a number of incidents which had been the subject of complaint. After a meeting between the employee and his head of personnel, a letter was sent recording that it had been agreed to "wipe the slate clean" in respect of the previous misconduct. Two further incidents then took place later in that year and the employee was dismissed. He complained that his dismissal was unfair. The employers took into account the earlier misconduct and the Employment Tribunal concluded that they ought not to have done so.
42. It was alleged that the Employment Tribunal had erred in law because they had considered themselves bound to ignore those earlier incidents. The EAT rejected the appeal on the grounds that this was not a proper reading of the Tribunal's decision. They had not considered themselves bound as alleged but they had simply taken the view in the circumstances of that particular case that it would not be right to take into account the earlier events. Phillips P observed:

"We regard [the agreement] … as merely one of the incidents which the Industrial Tribunal were obliged to take into account as constituting part of the "circumstances".

43. Mr Linden contends that this is the right approach and ought to be followed in this case. Charles was not specifically about warnings, but the effect of the agreement was similar to an expired warning. (The case was cited to the court in Diosynth, and they must be taken to have disagreed with it.)
44. Mr Linden contends that Charles reflects the proper approach; a tribunal is entitled but not obliged to find that an employer should have disregarded expired warnings. In very many circumstances, perhaps most, the tribunal will be justified in finding that an employer has acted unfairly in having regard to a disciplinary warning which has expired, but that should not be an inevitable conclusion. The fact that the warning has expired is merely one factor, albeit often one of very considerable weight, which the tribunal should take into consideration. Mr Linden suggests that otherwise it is simply not possible to ensure that fairness is achieved in the individual case. Where the warning has only very recently expired, or if it is in relation to the very same misconduct, or perhaps where there have been a number of warnings in the past each of which has expired, the tribunal may think that the conduct with respect to which the warning was given should be taken into account when considering whether the sanction of dismissal is one which a reasonable employer could impose.
45. Mr Linden also points out that there could be potentially curious and undesirable consequences in relation to establishing that misconduct had been committed if a rigorous approach is taken to expired warnings. He cites, for example, the case of an employee who has committed some offence in a relatively unusual or unique way - what, in criminal law, is referred to as "similar fact evidence". If that is the case then he submits that it would be absurd if, when that offence is committed again in a similar way and the employee denies having committed that offence, the employers have to put entirely out of their mind their knowledge of the way in which the employee has acted in the past.
46. The Respondent, not unnaturally, relies upon Diosynth, William Grant and Raby and submits that they demonstrate a clear and well-established principle that an expired warning should not be considered for any purpose whatsoever. Mr Short, counsel for Mr Webb, contends that both William Grant and Raby were laying down a principle that it was wrong for an employer to have regard to an expired warning in any circumstances. He submits that the passages in the judgment on which Mr Linden relies for the proposition that the courts in those two cases were merely saying that a tribunal was entitled to say that the employer on the particular facts ought not to have had regard to the warning did not support that analysis. In each case there were two bases for the decision of the Employment Tribunal, and in each the EAT was focusing on the alternative ground when it made those remarks.
47. Mr Short submits that these cases demonstrate that it can never be reasonable in any circumstances for an employer to give effect in any way to a spent warning. The whole point about it being spent is that it should lose its force thereafter. If the employer wishes it to retain any residual force then he should make it clear that it may continue to have some effect. In any circumstances where the tribunal finds that "but for the conduct which was the subject of the expired warning, the employee would not have been dismissed", that dismissal is unfair. It matters not whether the warning has significance by rendering certain misconduct more serious because of the disciplinary history, or whether it is material, as in this case, to the issue whether the employer will show leniency to the employee.
48. Warnings should be construed against the maker of them, as the Employment Appeal Tribunal (Mummery P presiding) held in Bevan Ashford v Malin [1995] IRLR 360, and if the employer purports to represent that the warning and its underlying conduct should be a spent force, then it is unjust to allow it to be relied upon thereafter. Here there was no doubt the warning was spent; that is what "removing the warning from the personal file" inevitably meant. There was no difference between such a removal and the language of disregarding the warning, as was the position in the Raby case.
49. Furthermore, the approach adopted in Diosynth is entirely in accord with the provision in the current ACAS Code on Disciplinary and Grievance Procedures. Para 24 indicates that final warnings should normally have a time limit, which it suggests should be 12 months. That is good industrial relations practice to which Tribunals should have regard in reaching their decisions. If employers wish to make exceptions then they can do so - hence the word "normally" in the paragraph - and by drafting appropriate rules they can deal with the kind of difficulties highlighted by Mr Linden.
50. Indeed, Mr Short pointed out that this is precisely what these employers had done in their disciplinary handbook; they had recognised that warnings could be for a longer period where there was a pattern of misconduct. The employers chose not to go down that route and they should be bound by the timescale they had prescribed.
51. Mr Short also says that in any event it is not clear that the Tribunal was concluding that dismissal was unfair merely because of the Diosyth decision, but we agree with Mr Linden that that argument is unsustainable given in particular the way in which the disagreement between majority and minority was framed, and the terms in which the Tribunal cast its decision (especially the italicised words) at para. 25, reproduced above (para 14).

Conclusions

52. We see considerable force in Mr Linden's argument. Here is an employee who after being fortunate enough to have a dismissal reduced to a final warning on appeal, commits a very similar act of gross misconduct shortly after that warning has expired. It is not a case where the gross misconduct relied upon is wholly different from that in respect of which he had already been leniently treated. Moreover, the misconduct would have justified the dismissal independently of the warning; to that extent the warning did not contribute to the decision to dismiss. Having regard to the history, he was not differently treated from the other employees; he had been given another chance, and so were they.
53. At the same time, however, it is clear from the treatment of the other similarly placed employees that but for the warning, or more accurately, but for the commission of the earlier offence which gave rise to the warning, Mr Webb would not have been dismissed.
54. We recognise, as Mr Linden submits, that in general the courts have indeed been reluctant to allow any hard edged rules to limit the range of potential factors which a tribunal may consider when applying s.98(4). If Diosynth is right, this is certainly an exception to that rule. The cases do, however, identify a rationale for treating expired warnings in a different category from other factors and obliging an employer to ignore them. The purpose of giving warnings is to enable the employee to know where he stands and what is expected of him. If the warning is to expire, whether the language be that it is to be disregarded, ignored or excised from the record, we think that this would give rise to the expectation that this would be so for all purposes.
55. Ms Mills, who has extensive experience in this area, takes the view that employers and employees typically do act on the basis that the slate should be wiped clean once a warning has expired, and that it would undermine disciplinary procedures were it otherwise, even if minor or occasional blemishes or injustices may be produced by that principle. The employer can always give himself greater room for manoeuvre by drafting the procedural rules to cater for exceptional circumstances.
56. I would not dissent from that view, although I confess to finding this a difficult point where the arguments are finely balanced. In any event, in an area of this kind where there are two competing principles, each of which has much to commend it, in my view it would be inappropriate to dissent from earlier decisions of this Tribunal, and particularly undesirable to part company with a decision of the Inner House of the Court of Session with the consequence that the law in England and Wales would differ from that in Scotland on this point.
57. This Tribunal is not bound by the decisions of the Inner House, but as Laws LJ observed in Marshall's Clay Products Ltd v Caulfield [2004] ICR 1502, para 31, "pragmatic good sense" would suggest that we should ordinarily follow it, and I consider that to be so even where there may be narrow grounds for distinguishing the Scottish case.
58. That deals with the principal and more far reaching ground of challenge. As to Mr Linden's argument that Diosynth can be distinguished, we accept that technically it can for the reasons he gave; it was not concerned with an employer choosing to be lenient, as is this case. But as Mr Linden accepted, if his submission on this point is correct, the distinction between the situation where the employer can have regard to the warning and where he cannot becomes a fine and to some extent arbitrary one.
59. In our view even if the Employment Tribunal was not strictly bound by Diosynth, it was applying a very modest and entirely logical extension of the principle enunciated by the court in that case. Moreover, we think that the general thrust of that case, and certainly the other two EAT cases, William Grant and Raby, is that where but for the expired warning the dismissal would not have occurred, that dismissal is unfair.
60. We confess that we have had some difficulty deciding whether those two cases were intending to establish that a tribunal is obliged, and not merely entitled, to ignore expired warnings, but on balance we think that they were. Accordingly, whilst it might be correct to say that the Employment Tribunal could have limited the effect of Diosynth in the way Mr Linden suggests, their decision was in line with these recent authorities.
61. Perhaps the lesson for employers is to take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances - as indeed this employer did in other contexts. As we have said, para 24 of the ACAS Code indicates that although final warnings should normally have a time limit of 12 months, that need not always be so. There is in our view no reason why it should not be longer if the nature of the misconduct justifies it, and in particular if the imposition of a lesser penalty is an act of leniency. An employer might also be justified in extending the period of the warning with respect to a later act of gross misconduct which is the same or substantially the same as that for which the earlier final warning was given.
62. We recognise that to some extent there is a tension between the flexibility allowed to employers to consider expired warnings and the complexity of the warning provisions prescribed by the ACAS Code. If employers are going to be denied the right to have regard to expired warnings in any circumstances, then they must be allowed reasonable flexibility to formulate their rules to allow for exceptional cases. This will inevitably make them more complex. Of course, they whatever the rules, they must always to be carefully drafted and clearly drawn to the attention of employees.

The cross appeal

63. We turn to the cross appeal. There are two grounds, which we can deal with briefly.
64. First, it was submitted by Mr Short that the Tribunal erred in reaching the conclusion that the employers were justified in finding that Mr Webb had committed the misconduct in question. Indeed, he submits that the Tribunal never made it clear whether in truth they were finding that he was simply working at the wrong time because he had not taken his break, or whether they were finding that it was a fraudulent misuse of time because he had not worked through his break and therefore was taking extra time.
65. We think there is nothing in this point at all. It is quite plain from the decision of the Tribunal, and in particular para. 17 which we have set out above, that the Tribunal accepted the analysis by Mr Evans that Mr Webb and the other four employees had not worked over their own break and that they had committed gross misconduct by failing to be at work when they ought to have been. This was not simply a question of working the same hours but at a different time to that which would normally have been worked.
66. Mr Short also relied upon the fact that the dismissal letter stated that the misconduct was watching television when there was no proof that Mr Webb was doing this. Plainly this was not the essence of the charge at all and it would be absurdly formalistic to treat the letter in that way. The employers were disciplining him for taking time off when he should have been at work; they were not concerned whether Mr Webb had his eyes open or shut when he was in the television room, or whether he was reading a newspaper as he alleged, and the Employment Tribunal was right to give this argument very short shrift, as do we.
67. The second ground is an allegation that the employers failed properly to investigate whether Mr Webb and the other men had worked during their tea break or not, and that there was simply no evidence to say that they had not. We think that again the position is put beyond doubt by paragraph 17 of the Tribunal decision. There is simply no substance in this argument at all. The Tribunal set out how the investigation was conducted and the evidence on which Mr Evans relied.
68. Perhaps most strikingly, none of these employees made the observation that this was a delayed and therefore legitimate tea break when they were discovered. Moreover, it was extremely unusual for them to volunteer to work through a break, and they did not have management permission.
69. It is true that the Tribunal does not in terms refer to other evidence which was consistent with the employee's account, but they mention the fact that there was such evidence. It consisted of self serving statements from the men themselves, and statements from other workers. The justification for Mr Evans choosing not to put weight on these was self evident; in any event it was a matter for him what weight to give them.
70. The Tribunal identified evidence which very powerfully supported Mr Evans' conclusion, and there was no obligation at all for them to rehearse all the evidence adduced before them bearing on Mr Evans' decision. Moreover, they were not there to substitute their own view for that of the employer. The contention that this was a perverse conclusion, or one that failed adequately to give proper reasons for the conclusion, is without merit.
71. However, for the reasons we have given, both the appeal and cross appeal fail.