A useful case for anyone considering disciplinary action in the New Year

The Employment Appeal Tribunal (EAT) in Bandara v BBC has recently ruled that an employer cannot rely on an existing final written warning to dismiss an employee who is guilty of further misconduct when the decision to issue the existing warning was “manifestly inappropriate”. I believe this is a useful and instructive case for employers for reasons that will become apparent.

Mr Bandara was a senior producer in the BBC. In March 2013, he shouted at his manager, but apologised the next day. He had an unblemished disciplinary record until that point. At the time, no action was taken by HR. In July 2013, Mr Bandara was charged with a breach of editorial guidelines for failing to prioritise coverage of the birth of Prince George.  Disciplinary action was then taken in respect of both incidents in August; it was decided that, taken together, the two incidents amounted to gross misconduct but he was issued with a final written warning. Shortly after that, the BBC investigated fresh allegations against Mr Bandara which resulted in his summary dismissal.

Mr Bandara brought a claim for unfair dismissal in the Employment Tribunal. The Employment Tribunal found that the initial decision to give a final written warning was manifestly inappropriate because the BBC had failed to take into account Mr Bandara’s long, unblemished service and the delay between the incident in March 2013 and the disciplinary proceedings in August 2013. However, the Tribunal found that it was reasonable for the BBC to dismiss even had the first warning been an ordinary written warning rather than a final one.

The decision was appealed and EAT held that the Tribunal should have focused on the BBC’s actual reasoning for dismissal. It sent the case back to the Tribunal to reconsider but the crucial element for employers is the following:

The EAT said that what should be considered is whether or not the decision to dismiss was reasonable and this will include the extent to which the employer relied on the final written warning. If the employer treated the warning as no more than background and in fact dismissed for the misconduct alleged in the new proceedings, then the dismissal could be fair. If, however, the employer attached significant weight to the warning, it is difficult to see how the employer’s decision could be reasonable.

The key points for employers are:

• in general (and unless they are manifestly inappropriate),earlier warnings by an employer should be regarded by the tribunal as established background that should not be reopened;
• for a decision to be “manifestly inappropriate” the bar is quite high; and
• if there is a potential gross misconduct dismissal situation ensure that previous disciplinary action does not influence the decision (if there is any doubt as to whether it will withstand the “manifestly inappropriate” test).