Sweeney (Deceased) v Strathclyde Fire Board

In assessing fairness under section 98(4) of the Employment Rights Act 1996, an employer may take account of a valid final written warning which is live when dismissal is decided, even if the misconduct under consideration occurred before the warning was issued. A warning is not confined to regulating future conduct. It also records established misconduct and forms part of the employee’s disciplinary record.

The employer must consider the individual circumstances and must not treat a cumulative-disciplinary policy as inflexible. It may nevertheless follow such a policy unless there is good reason to depart from it. On the facts, it was reasonable to treat two separate acts of misconduct, each warranting a final warning, as justifying dismissal.

The claimant, a retained fireman and watch commander, was convicted of domestic assault and breach of bail conditions. The respondent dismissed him for misconduct after taking account of a live final written warning issued for separate unauthorised absence. The conduct resulting in the convictions occurred before that warning was issued.

The Employment Tribunal dismissed his unfair-dismissal claim. On appeal, the claimant accepted the Tribunal’s other conclusions but contended that, as a matter of law, the later warning was irrelevant to earlier misconduct. The central issue was whether the employer could take that live warning into account when selecting the sanction for the criminal-conviction misconduct.

1. Appeal dismissed. The Employment Appeal Tribunal held that the dismissal was not unfair under section 98(4) of the Employment Rights Act 1996.

2. The respondent was entitled to consider the claimant’s whole disciplinary record when deciding the appropriate sanction. A final written warning is not solely an admonition about the consequences of future misconduct. It is also a record of misconduct which a reasonable employer may take into account.

3. The warning was live when dismissal was considered and had not been challenged as invalid or disproportionate. The respondent had dealt separately with the absence misconduct and the criminal misconduct as each became known. It could therefore take account of the fact that both incidents had occurred, even though the criminal conduct pre-dated the warning.

4. The ACAS Code did not address this unusual sequence of events and did not require the warning to be ignored. [2008] EWCA Civ 49 and [2006] SLT 323 concerned expired warnings and did not govern the issue.

5. A cumulative-disciplinary policy cannot remove the need to consider the particular facts. However, a reasonable employer may follow it where, after considering mitigation and long service, there is no good reason to depart from it. The respondent had considered those matters and was entitled to conclude that dismissal was appropriate.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the unfair-dismissal claim was upheld.
• Employment Tribunal: the claimant’s unfair-dismissal claim was dismissed in a decision sent to the parties on 20 February 2013. The disability-discrimination claim was also dismissed and was not appealed.