Totting up previous offences to get to dismissal

In cases where an employee has committed more than one disciplinary offence, or when a further offence is committed whilst a previous warning is still live, the employer has to consider whether or not it is reasonable to dismiss the employee in the circumstances.

This is often an area that employers are unsure about, and it was something the Employment Appeal Tribunal (EAT) considered in the recent case of Sweeney v Strathclyde Fire Board.

Mr Sweeney had over 20 years’ service. In July 2010 he was charged with assaulting his wife. One month later he was absent from work without authorisation, and for that he received a final written warning.

The criminal charges in relation to the assault were dealt with in March of the following year. Mr Sweeney pleaded guilty and was sentenced to 180 hours’ community service. Following his sentencing, the Fire Board investigated the assault and found that it was a matter that would have warranted a final written warning. As Mr Sweeney had a final written warning already on file, this was taken into account and Mr Sweeney was dismissed.

Mr Sweeney claimed unfair dismissal on the basis that it was not fair to rely on the previous warning, because that related to conduct that happened prior to the incident that led to the final disciplinary process. Both parties agreed that this was not something that is dealt with in the ACAS Code.

The Tribunal and EAT did not agree with Mr Sweeney’s argument. They found that the employer had considered the circumstances and the decision to dismiss had fallen within the band of reasonable responses. The employer was entitled to look at an employee’s overall record when considering whether dismissal was an appropriate sanction.

A similar approach was taken by the Court of Appeal in the case of Davies v Sandwell, which we reported on last year (see our article here).

While this may seem obvious, the fact that the case got as far as it did shows that there is still uncertainty amongst some employers about when they can take previous conduct and warnings into account when considering dismissal. If you are dealing with a situation involving potential ‘totting up’ previous incidents, why not give us a call on 01243 836840 to talk it through?

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.