The elasticity of reasonableness

11 Jul 2014

Kevan Sweeney was a fireman with Strathclyde Fire and Rescue. He was under stress and in March – June 2010 took an assignment overseas. However he didn't follow Strathclyde's 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 in July 2010 and was prosecuted. He was sentenced to community service in March 2011.

Following another suspension Mr Sweeney was charged with gross misconduct; his behaviour was in conflict with Strathclyde's policies, was not befitting a Watch Commander and was a breach of trust and confidence. He argued 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. Strathclyde noted the final warning and Mr Sweeney was dismissed after 26 years service.

It was common ground that Mr Sweeney would not have been dismissed but for the final warning. The question for the EAT concerned the relevance of the warning. There was no warning in existence when the crime was committed so was it irrational for Strathclyde to proceed on the basis that the warning could be relevant to the offence?

The EAT took a wide view. It said 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 which looks backwards and forwards.

I have some sympathy for Mr Sweeney whose employer seems to have been as unimaginative as it was unsympathetic in failing to recognise the two incidents as different facets of the same issue. Nevertheless the judgement is helpful for indicating that the concept of reasonableness permits one 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 facts based approach is enough.