In the case of Bandara vs British Broadcasting Corporation, the Employment Appeals Tribunal (“EAT”) held that manifestly inappropriate warnings cannot be relied on in disciplinary proceedings.
Mr Bandara was employed by the British Broadcasting Corporation (“BBC”) as a Producer for nearly 18 years. Mr Bandara was involved in an argument with a colleague and failed to follow the instructions of his manager. He received a final written warning for the combination of incidents in November 2013, which stated that these actions “potentially constituted gross misconduct”. Shortly afterwards, Mr Bandara was subject to further disciplinary proceedings concerning allegations of bullying and intimidation and a refusal to follow management instructions. As a result, Mr Bandara was summarily dismissed. He issued a claim against the BBC for unfair dismissal, but this was rejected by the Employment Tribunal who found the dismissal to be fair. However, this was subsequently overturned by the Employment Appeals Tribunal (“EAT”).
The EAT found that the Tribunal had approached the case incorrectly. Although, the Tribunal found that the earlier final written warning had been ‘manifestly inappropriate’, it went on to apply a hypothetical question of whether the dismissal would have been fair if Mr Bandara had been subject to an ordinary warning.
The EAT found that the Tribunal should have focused on the actual reasoning of the BBC and asked whether, applying the objective standard of a reasonable employer, it had acted reasonably in dismissing Mr Bandara. The Tribunal’s task was not to put forward a hypothesis of its own, but to examine an employer’s reasoning. To do so, it should have examined whether and to what extent the employer relied on the final written warning.
The EAT commented that a Tribunal may be entitled to find that a dismissal is fair if the ‘manifestly inappropriate’ warning is treated by the employer as no more than background and, in reality, the dismissal is for the misconduct alleged in the new disciplinary proceedings. However, if the employer attaches significant weight to a ‘manifestly inappropriate’ warning, the EAT considered that it was difficult to see how the employer’s decision could be reasonable.
When considering the sanction of dismissal where a prior warning remains active, an employer may wish to satisfy itself that there is nothing inappropriate about the earlier warning before relying upon it.
If a Tribunal finds that a warning is manifestly inappropriate, the employer may not rely on that warning and it is likely to be harder for the employer to satisfy the reasonableness test. Where there is an active warning on file but a dismissal is on account of standalone gross misconduct, employers should make clear in the dismissal letter that the gross misconduct alone was the reason for dismissal. This may avoid the appropriateness (or otherwise) of the earlier warning being brought into question.
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