Whether or not a dismissal will be fair depends on many factors. Employers need to carefully consider all of the circumstances before reaching a decision to dismiss to avoid successful claims against them.


In our previous article, we looked at the law of unfair dismissal and the wide range of factors that decision makers should take into account before deciding to dismiss an employee for the potentially fair reason of misconduct.

In this article we consider the concepts of length of service, consistency of treatment and the availability of alternative sanctions and how they may affect an employer's decision making process.

Length of service

An employee's length of service is always a relevant consideration when deciding upon the most appropriate level of disciplinary sanction to apply to a particular set of facts.

By way of example, the fact that an employee has been employed for 25 years with no previous disciplinary warnings on file would be a material consideration when considering the possibility of dismissal for a one-off gross misconduct offence. Depending upon the facts, summary dismissal may be deemed to be unfair. Equally, there will be circumstances where the gross misconduct would be deemed so serious that summary dismissal would be most appropriate and within the range of reasonable responses available irrespective of length of service.

It is also worth noting that an employee's long service could, in certain cases, count against them on the basis that their experience means that they should have known not to commit the misconduct in question.

Consideration has to be given to the fact matrix of each case in conjunction with an employee's length of service, and any previous disciplinary record (which we will consider in our final article).

The crucial question is: what would a reasonable employer faced with the same set of facts decide?

Consistency of treatment

Consistency of treatment is also a factor which needs to be considered in every case. This requires that employees should not be treated more harshly for the same offence as another employee in the same circumstances.

However, the ACAS guidance makes it clear that fairness does not mean similar offences will always result in the same disciplinary outcome. There may be different individual circumstances and other facts of the case are likely to be different in some ways. In fact, very few cases will ever be exactly the same on their facts.

An employee's conduct can be attributable to a number of things such as:

  • the position held
  • the level of training received
  • ignorance of rules of procedure or expected standards
  • provocation
  • the personal circumstances of the employee(s) involved
  • the intention of the employee
  • whether the nature of the conduct or omission was deliberate

The decision maker must consider all of the facts of the particular case which are known at the time of making the decision on sanction and again think about what a reasonable employer would do when faced with the same set of facts.

Alternative sanctions

An employer has a range of options available when it comes to what disciplinary sanction should be imposed; these are often set out in their Disciplinary Policy and Procedures documentation.

Sanctions can range from no disciplinary action whatsoever through to summary dismissal (dismissal without pay or notice). Some employers may also have a contractual right of demotion or have the possibility to transfer or redeploy employees.

The full range of available sanctions must therefore be considered carefully, and a determination made as to what the most appropriate level of sanction is in all the circumstances of the case. Decision makers need to ensure that the sanction imposed is commensurate to the misconduct committed.

The ACAS Code provides useful guidance for decision makers. It states that where misconduct is found it is usual to give the employee a warning. Depending upon the circumstances and the severity of the misconduct, this may be either a written warning or a final written warning (generally saved for where further acts of misconduct are committed during a live warning or for the more serious acts of misconduct).

Whatever the decision, the employee should be notified of the reason for the warning, together with confirmation of the standards of behaviour expected while at work, the change to behaviour required and the timescale for achieving this improvement.

The consequences attached to the written warning should also be set out, namely that where further misconduct is committed in a set period, this may result in further disciplinary action being taken up to and including dismissal. It is important therefore to confirm that the warning will remain on the employee's file for a period of time (usually six months for a written warning and 12 months for a final written warning).

A useful example

ACAS guidance provides a useful example for the purpose of this article. The question is, would your decision have been the same?

A long-serving employee returns from a celebratory lunch having consumed too much alcohol. He is very apologetic and promises that it will not happen again. Although being unfit for work because of excessive alcohol is listed in the company rules as gross misconduct, taking into account his ten years' service and exemplary record, the employer decides not to dismiss him but to give him a final written warning.

Next time

In our final article we will look closely at the issues of prior disciplinary records, expired warnings and mitigating circumstances.