Taking live warnings into account when dismissing

Disciplinary action can be a complex matter and you need to be sure that you are following the rules or you can find yourself in legal difficulty. Our article shows what can happen and some guidance on how to avoid it.

It would seem fair that somebody cannot have a judgement increased against them on the grounds of something that happened after the offence occurred.

However, a case from 2013 found that when it comes to disciplinary procedure, the timeline is not one-directional.

The case of Sweeney (deceased) v Strathclyde Fire Board began in March 2010 when, following personal issues, Sweeney went overseas to work as a fireman without obtaining proper authorisation from the Fire Board. When he returned in June 2010, he was involved in an incident of domestic violence, when he broke his wife’s nose. This was also related to personal issues in his life. He was charged by the police over the attack on his wife.

At the end of August 2010, Sweeney was issued with a final written warning for his unauthorised absence between March and June. He was informed that this would stay live on his file for eighteen months. He was also warned by his employer that any further misconduct was likely to result in dismissal.

The case of domestic assault came to court and he was found guilty in March 2011, receiving a sentence of community service. When his employers found out about this, they suspended him, pending a formal investigation into the nature of the charges, which were held to be incompatible with his position and rank in the Fire Service.

When the facts of the matter were established, Sweeney was informed that he was being dismissed. Whilst he would normally have been given a final written warning as a result of the conviction against him, he was told that this had been increased to dismissal on the grounds that he already had a live final warning on his file, relating to the unauthorised absence.

Sweeney claimed unfair dismissal; his case centred around the fact that the live final warning had been issued in August 2010, after the incident of domestic assault (June 2010), which was the offence being increased to dismissal. He argued that the employer was not entitled to take the warning into account as it applied only to any future misconduct.

His employer had taken that action because in its disciplinary rules, action was mandated to be cumulative, so where there was a ‘live’ warning in existence, any future action had to be elevated to the next level; in this case, dismissal.

Section 98 of the Employment Rights Act 1996 contains what is known as a test of reasonableness, helping to define what is reasonable conduct and behaviour by employers.

It says that the actions of employers must have been reasonable and “shall be determined in accordance with equity and the substantial merits of the case”. This is quite a broad definition and means that a wide variety of issues should be taken into account in order that an employer can ensure their conduct is seen as reasonable. Those issues may well include previous misconduct by an employee as part of the ‘bigger picture’.

The employer’s counsel said that a warning is “Janus like” in that it looks both ways and the chair of the tribunal accepted that view.

The main purpose of a written warning is to encourage improvement in future conduct, but another, and equally relevant feature is that it formally records the misconduct that has already happened. To take this into account in order to get as full a picture of the matter in hand as possible would certainly be described as ‘reasonable’.

The ACAS Code of Practice on disciplinary matters, which gives non-statutory guidance on how to deal with disciplinary and grievance matters and which is used by many employers, does not cover this exact situation; the Tribunal accepted that Sweeney’s case was very unusual, owing to the timeline of events and the order in which they came to the attention of the employer.

What does this mean for employers? They still need to give consideration to the promptness with which they treat disciplinary action. However, it is inevitable that there may be delays which are beyond the employer’s ability to affect. Should this be the case, the tribunal’s ruling makes it clear that disciplinary warnings given after the event and which are still live can be considered by the employer. Paramount in the employer’s mind must be the concept of reasonableness.

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