In Sweeney v Strathclyde Fire Board, Sweeney (S) was charged with assaulting his wife in July 2010. In August 2010, S received a final written warning for unauthorised absence from work. In March 2011, S was sentenced to 180 hours community service for domestic abuse and breaching bail conditions. An investigation was carried out regarding the conduct which had resulted in the criminal charge. Taking the warning currently on S’s record into account, S was dismissed. The tribunal found that the employer would have issued S with a final written warning had there not been a current final written warning on his record. However, the disciplinary rules stated that disciplinary action was cumulative, so that where a ‘live’ warning was in existence, any future action had to be at least at the next level, depending upon the nature of the misconduct. In the circumstances, the tribunal was satisfied that the dismissal fell within the band of reasonable responses.

S appealed, arguing that the employer should not be able to rely on the final written warning for absence when deciding to dismiss because the conduct which lead to the criminal charge, (the actual assault on his wife) had happened before that final written warning was issued. The EAT disagreed. It held that a written warning cannot be construed as referring only to misconduct taking place after the date the warning was given. While a warning is designed to improve future conduct, it is nevertheless a formal record of misconduct that has been committed and is a fact which a reasonable employer is entitled to have in mind.  The employer was entitled to look S’s record overall when deciding how to deal with his conduct which had resulted in criminal convictions and were absolutely entitled to proceed as they did.   

The EAT’s ruling confirms that when an employer is deciding whether or not to dismiss, it can be reasonable to take a ‘live’ warning into consideration even though it was issued after the misconduct which is the subject of the disciplinary proceedings, was committed.

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