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11 January 2017

45: Court considers fairness of dismissal where an earlier final written warning was manifestly inappropriate’

In Bandara v BBC, the EAT considered whether an employee had been unfairly dismissed where his employer had relied on a previous final written warning that was ‘manifestly inappropriate.’

Mr Bandara had worked for the BBC for 18 years with an unblemished disciplinary record and most recently as a senior producer for the Sri Lankan service. In 2013, two disciplinary incidents occurred. In the first incident, Mr Bandara shouted at a senior manager. He apologised the next day and although HR was informed, no action was taken at that time. The second incident occurred on 23 July, when Mr Bandara breached editorial guidelines by prioritising coverage of the thirtieth anniversary of Black July, a significant time of remembrance for Sri Lankans, over the birth of Prince George. In August 2013, disciplinary action was taken in respect of both incidents and a final written warning was imposed, to remain live for 12 months.

In May 2014, further disciplinary action was taken against Mr Bandara following allegations of bullying, abusive behaviour and refusing to obey management instructions. These allegations were all either upheld or partially upheld, and he was dismissed for gross misconduct. Mr Bandara brought a claim for unfair dismissal in the Employment Tribunal.

The Tribunal found that under the BBC’s disciplinary policy, and by accepted standards, Mr Bandara’s conduct in 2013 did not amount to gross misconduct, and that an ordinary written warning would have been more appropriate, particularly given his exemplary record. The final written warning was therefore held to be ‘manifestly inappropriate.’ The Tribunal went on to ask hypothetically whether it would have been reasonable to dismiss Mr Bandara for his further misconduct if the warning had been an ordinary written warning, and concluded that it would have been reasonable. On this basis, the Tribunal held that the dismissal was fair. Mr Bandara appealed and the BBC cross-appealed the ruling that the final written warning was manifestly inappropriate.

The EAT held that the Tribunal had been entitled to conclude that the final written warning was manifestly inappropriate and dismissed the BBC’s cross-appeal. However, the EAT upheld Mr Bandara’s appeal, ruling that the Tribunal should have examined the actual reasoning of the BBC, not a hypothetical situation. The Tribunal should have asked whether and to what extent the BBC took account of the ‘manifestly inappropriate’ final written warning. It should then have assessed whether the decision to dismiss fell within the range of responses a reasonable employer might adopt in all the circumstances. The case was sent back to the same Tribunal to apply the correct test.

If there is any doubt about whether an earlier final written warning should have been given, an employer must consider carefully whether dismissal is still an appropriate sanction and properly document this reasoning. As the EAT noted in this case, if an employer attaches significant weight to a manifestly inappropriate warning, it is difficult to see how a decision to dismiss could be reasonable. This case also highlights the need to review disciplinary policies regularly to ensure that they accurately reflect the employer’s standards of conduct, particularly as regards the types of behaviour which are classed as gross misconduct.

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