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.