Can a manifestly inappropriate final written warning be used to dismiss an employee at a subsequent hearing?
This was considered in the case of Bandara v British Broadcasting Corporation  UKEAT 0335/15/0906.
The Employment Appeal Tribunal (EAT) held in this case that, where a final written warning was held to be manifestly inappropriate by a tribunal, the tribunal had incorrectly posed the question of whether it was fair to dismiss for a hypothetical warning instead. The correct approach is for the tribunal to focus on the actual reason for dismissal and whether this was reasonable in the circumstances.
If the employer treated the warning as simply background and dismissed the employee for the misconduct alleged in the new disciplinary proceedings, the dismissal may be fair. However, if the employer attached significant weight to the warning, starting from the position that the employee was already subject to a final warning, it’s difficult to see how the decision to dismiss could be reasonable.
Mr Bandara had worked as a Senior Producer in the BBC’s Sinhalese Service for 18 years. He had not been subject to the disciplinary procedure until August 2013, when he was subject to disciplinary proceedings in respect of an allegation that he had shouted at a senior manager and a further allegation that he had breached editorial guidelines. A final written warning was imposed.
In 2014, Mr Bandara was subject to further disciplinary proceedings concerning various allegations of bullying and intimidation and was summarily dismissed on 15 August 2014.
Mr Bandara brought a claim for race discrimination and unfair dismissal in the Employment Tribunal. The tribunal dismissed Mr Bandara’s claims for discrimination and unfair dismissal but held that the earlier final written warning was manifestly inappropriate.
Mr Bandara appealed against the dismissal of his unfair dismissal claim and the BBC cross-appealed against the tribunal’s finding on the appropriateness of the earlier final written warning.
The EAT held that earlier disciplinary sanctions by an employer should generally be regarded by the tribunal as established background and should not be reopened unless that sanction is ‘manifestly inappropriate’ and ought not to have been imposed. In the present case, the tribunal found that the earlier final written warning should not have been imposed.
However, the tribunal had erred in concluding that Mr Bandara’s dismissal was nevertheless fair.
The EAT held that where an employee is dismissed for misconduct following a final written warning that the tribunal considers is manifestly inappropriate, the tribunal should not put forward a hypothesis of its own. Instead, the tribunal should examine the employer’s reasoning and assess whether or not the decision to dismiss was reasonable having regard to the range of reasonable responses under s.98(4) of the Employment Rights Act 1996. This will include consideration of the extent to which the employer relied on the final written warning.
If the employer treated the warning as simply background and dismissed the employee for the misconduct alleged in the new disciplinary proceedings, the dismissal may be fair. However, if the employer attached significant weight to the warning, starting from the position that the employee was already subject to a final warning, it is difficult to see how the decision to dismiss could be reasonable.
This case not only clarifies the test the tribunal applies when a final written warning has been considered ‘manifestly inappropriate’; it also highlights a variety of reasons why employers should maintain robust disciplinary policies and procedures.
To avoid a final written warning being considered ‘manifestly inappropriate’, employers should have clear policies outlining conduct which constitutes gross misconduct, or any other conduct warranting a final written warning.
Furthermore, when assessing the sanction to be applied following the disciplinary process, employers should be careful to assess all evidence, in the circumstances, taking care not to dismiss or sanction an employee solely based on what may be a manifestly inappropriate final written warning.
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