When it comes to determining the appropriate sanction for an incident of misconduct, can an employer take into account a previous first written warning?
Published on: 06/11/2018
Issues Covered:
Article Authors The main content of this article was provided by the following authors.
Chris Fullerton Partner in the Employment Law Group, Arthur Cox LLP
Chris Fullerton Partner in the Employment Law Group, Arthur Cox LLP
Chris fullerton from arthur cox ni
LinkedIn

>Chris is a partner in the Employment Law Group of the Arthur Cox Belfast Office in Northern Ireland.

Chris has extensive experience dealing with both contentious and non-contentious employment law matters. Chris advises a range of employers on all aspects of employment law including executive appointments, severance, grievances, disciplinary issues and trade union matters. Chris has represented clients before the Industrial Tribunal, Fair Employment Tribunal and the Court of Appeal in Northern Ireland in employment litigation such as unfair dismissal, equality/discrimination and whistleblowing. Chris’ practice area includes advisory work and corporate transactions.

When it comes to determining the appropriate sanction for an incident of misconduct, can an employer take into account a previous first written warning?

When determining an appropriate sanction for an act of misconduct, employers should ensure that they are familiar with the LRA Code of Practice on Disciplinary and Grievance Procedures, which sets out the different sanctions available, from warnings right up to dismissal.

From a practical perspective, employers should:

  • adopt procedures that will encourage employees to improve rather than punish employees;
  • act with impartiality and consistency; and
  • impose a sanction that is reasonable and proportionate in the circumstances, taking into account:
    • any guidelines and/or examples in any disciplinary procedure about relevant types of misconduct and level of sanction;
    • any mitigating factors that could have attributed to the misconduct; and
    • an employee’s length of service and current disciplinary record.

All employers should have comprehensive grievance and disciplinary policies and procedures in place. As part of the disciplinary policy, employers should set out examples of different types of misconduct and the level of sanction applicable. This will ensure the employer adopts a consistent approach and it will also enable employees to see the potential consequences of misconduct.

When an employee is given a warning, they should be told how long the warning will be valid for and also how long details of the warning will be kept on their personnel file. The warning should also specify the change in behaviour required and the consequences of failing to correct this behaviour.

The EAT in Bates v Liverpool City Council [2007] held that disciplinary sanctions (short of dismissal) which are disproportionate to the offence or outside the range of reasonable responses, can provide sound foundation for a constructive dismissal claim. Although this is not a binding decision in NI, it still highlights the need for employers to exercise caution when assessing sanctions for instances of misconduct.

As mentioned above, warnings will only be valid for a certain time period (usually 6 months for a first written warning). After this period has lapsed, the warning itself cannot be used as a factor when determining the sanction for future misconduct. However, while this is usually the case, the Court of Appeal in Airbus UK Ltd v Webb [2008] has held, albeit in limited circumstances, that while the warnings themselves cannot be relied upon, the conduct that led to the warning can be taken into account in future disciplinary proceedings for the same offence.

Continue reading

We help hundreds of people like you understand how the latest changes in employment law impact your business.

Already a subscriber?

Please log in to view the full article.

What you'll get:

  • Help understand the ramifications of each important case from NI, GB and Europe
  • Ensure your organisation's policies and procedures are fully compliant with NI law
  • 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
  • Receive free preliminary advice on workplace issues from the employment team

Already a subscriber? Log in now or start a free trial

Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 06/11/2018