Relying on a Manifestly Inappropriate Final Written Warning to Subsequently Dismiss

The case of Bandara v British Broadcasting Corporation UKEAT/0335/15/JOJ

Employers frequently rely on previous disciplinary sanction, such as written warnings, when deciding whether to dismiss an employee for misconduct. However, in the recent case of Bandara v British Broadcasting Corporation (BBC), the Employment Appeal Tribunal (EAT) examined fairness of a dismissal which relied on a previous final written warning, which had been determined as manifestly inappropriate.

Background

Mr Bandara was employed by the BBC as a Senior Producer for their Sinhalese Service. For nearly 18 years, Mr Bandara had an exemplary disciplinary record. However, in 2013, there were two incidents which gave rise to disciplinary action against him; the first was an alleged incident whereby Mr Bandara was accused of abusive behaviour towards his manager, and failure to follow a reasonable management instruction.

The second incident was Mr Bandara’s decision to prioritise the coverage of the anniversary of a date which is important in Sri Lankan history over the birth of Prince George. At a disciplinary hearing, the BBC considered that Mr Bandara’s conduct in the two incidents were acts of gross misconduct and decided to give Mr Bandara a final written warning.

A short time after, Mr Bandara was subject to another disciplinary for alleged acts of abusive behaviour towards colleagues, including bullying, intimidation, and refusing to follow a reasonable management instruction. After the disciplinary hearing, the BBC determined that the majority of the allegations were either proven or partially proven, and Mr Bandara should be summarily dismissed.

Tribunal Claim

Mr Bandara brought claims of unfair dismissal and race discrimination at the Employment Tribunal. Even though the Tribunal found that the previous final written warning was manifestly inappropriate, the Tribunal dismissed Mr Bandara’s claims. Mr Bandara appealed this decision to the EAT, and the BBC cross appealed on the Tribunal’s Judgment in relation to the inappropriateness of the previous warning.

The EAT outlined that a previous disciplinary sanction should not ordinarily be reopened and scrutinised, however it can be reopened in circumstances where the sanction is manifestly inappropriate. This was explained as when a sanction has an imposition which clearly shows that it should not have been imposed. The EAT considered that the Employment Tribunal were entitled to conclude that the final written warning should not have been given, as it clearly did not constitute gross misconduct by the BBC’s own standards, and in general.

The EAT found that the Employment Tribunal had wrongly found that Mr Bandara’s dismissal was fair, and considered that in the circumstances, the Tribunal was not entitled to have a theory of its own. In this case, this meant the Tribunal had posed the hypothetical question of what would have happened had the existing warning been ordinary, as opposed to a final written warning.

Instead, the EAT considered that the Tribunal ought to have considered the extent to which the BBC relied on the final written warning and, given the BBC’s reasoning, whether the dismissal fell within the range of reasonable responses. The EAT explained that if an employer regarded the previous warning as no more than background, and/or is found to have dismissed on the basis of misconduct in the new proceedings, then the dismissal can potentially be fair. However, if an employer uses the warning as their starting position, when making their decision to dismiss, the EAT concluded that it would be hard to see how an employer’s decision in this circumstance could be fair.

In this case, the EAT found that the tribunal had incorrectly considered the hypothesis  of whether the dismissal would have been fair if Mr Bandara had been subject only to an ordinary, and not a final, written warning. Therefore, the Tribunal’s decision could not hold up. The EAT considered that the Employment Tribunal had not made clear findings on the extent to which the BBC took account of the existing final written warning, therefore the EAT could not establish whether Mr Bandara’s dismissal was fair, and the case was remitted to the Tribunal for determination of this point.