Kevan Sweeney was a Fireman with Strathclyde Fire and Rescue. He was under stress and, in March - June 2010, took a short term assignment overseas. He failed, however, to follow Strathclyde's HR procedures so his absence was unauthorised. He was suspended on his return and in August 2010 was given a final written warning. In the meantime, Mr Sweeney assaulted his wife and broke her nose in July 2010. He was prosecuted, and in March 2011, was sentenced to 180 hours community service.
In April 2011, Mr Sweeney was suspended again pending an investigation into his behaviour towards his wife. This led to a charge of gross misconduct namely that his behaviour was in conflict with Strathclyde's policies, was not befitting a Watch Commander and was a breach of trust and confidence.
Part of Mr Sweeney's reply was that the domestic incident was caused by the stress of his first suspension and other stressors. He produced medical evidence and a supportive letter from his wife. The complaint was upheld and Mr Sweeney was dismissed on 20 September 2011 after 26 years' service. In his decision, the dismissing office took account of the final written warning given the previous year.
Mr Sweeney's appeal was refused and he claimed unfair dismissal. His claim was dismissed and he appealed.
It was common ground that Mr Sweeney would not have been dismissed but for the final warning on his record. The question for the EAT concerned the relevance of the warning; there was no warning in existence when the criminal offence took place so it was irrational for Strathclyde to proceed on the basis that the warning could be relevant to that offence.
The EAT took a wider view finding that a warning is a fact which a reasonable employer is entitled to have in mind. Strathclyde was aware of an alleged link between the offences but was entitled to deal with them separately as they emerged. The Tribunal also found that a warning is more than an admonition; it is a recording of misconduct for both the employer and the employee which looks backwards and forwards.
The full case report, which can be found here, is an interesting read.
We have a degree of sympathy for Mr Sweeney as there seems to be some merit in the proposition that the two incidents for which he was disciplined are different facets of the same unresolved issue. Nevertheless the judgement is helpful to employers for indicating that the concept of reasonableness permits them to take a broad view of all the circumstances of a case without undertaking a forensic analysis of the effect of warnings on the commission of two or more offences. A fact based approach is enough.