The Employment Appeals Tribunal recently held that the date of a warning issued under a Company’s disciplinary procedure should be the date on which the impugned conduct occurred. This finding led the Tribunal to hold that a dismissal was unfair where it followed a warning which had expired.

In this case, an employee worked at the till of a convenience store/fuel outlet. A customer complaint followed an incident on 18 August 2010 when the employee had been using the Company’s telephone at a time when there was a queue of customers at her till. A disciplinary meeting was held on 28 September 2010 and the employee  was issued with a final written warning on 29 September 2010. She was informed that this final written warning was to remain effective for twelve months and that any further conduct warranting disciplinary action would lead to her dismissal.

Another customer complaint was received on 9 September 2011 relating to an incident which occurred on 23 August 2011. The complaint related to an incident where the employee refused another customer’s request for a refund. A disciplinary meeting was held on 27 September 2011 and following this meeting, the employee was informed of her dismissal. She was told that as the case against her was proven and her final written warning had not yet expired, the Company had no option but to dismiss her.

The Tribunal stated that the date to apply to warnings issued under the Company’s disciplinary procedure should be the date on which the disciplinary incident occurred. It noted that the employee’s final written warning related to an incident which occurred on 18 August 2010 and that her dismissal followed an incident which occurred on 23 August 2011. Therefore the final written warning had expired by the time the next incident occurred and the Company should have operated on the basis that she had no current warnings. The Tribunal was of the view that the incident for which the employee was dismissed was not one which alone could have warranted dismissal. In these circumstances, the Tribunal found the dismissal to be unfair and awarded her €27,993.

As employers know, there can often be a time gap between an incident warranting disciplinary action and the issuing of the disciplinary sanction. According to this decision, where there is such an interval, the date to apply to the warning should be the date on which the incident in question occurred. In any case, if relying on an earlier warning when deciding on disciplinary sanction, employers should make sure that the earlier warning is still live. 

Contributed by Alicia Compton and Nichola Harkin.

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