In Bandara v British Broadcasting Corporation the EAT has upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss an employee for further misconduct because the decision to issue the existing warning was ‘manifestly inappropriate’. However, the EAT went on to hold that the tribunal erred in finding that the dismissal was nonetheless fair. The tribunal had wrongly posed the hypothetical question of what would have happened had the existing warning been an ordinary, as opposed to a final, written warning. Instead, the tribunal ought to have considered the extent to which the employer relied on the final written warning and, given the employer’s reasoning, whether the dismissal fell within the range of reasonable responses under S.98(4) of the Employment Rights Act 1996.

B worked as a Senior Producer in the BBC’s Sinhalese Service. Until 2013, he had an unblemished disciplinary record going back almost 18 years. In August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year. The first, for which he was charged with abusive behaviour and refusing to follow a reasonable management request, concerned an occasion in March when he had shouted at a senior manager, S. He had apologised to S by e-mail the following day and no further action was taken at the time. The second, for which he was charged with a breach of editorial guidelines, related to his decision, on 23 July 2013, to prioritise coverage of the 30th anniversary of Black July – a sombre date in Sri Lankan history ­– over that of the birth of Prince George the previous day. The disciplinary decision-maker, I, considered that both incidents potentially constituted gross misconduct, and decided to impose a final written warning.

Shortly thereafter, B was subject to further disciplinary proceedings, which concerned various allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. G, the disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded on 15 August 2014 that B should be summarily dismissed. B’s claims of race discrimination and unfair dismissal were dismissed by an employment tribunal, notwithstanding the tribunal’s finding that the earlier final written warning was manifestly inappropriate. B appealed against the dismissal of his unfair dismissal claim, and the BBC cross-appealed against the tribunal’s finding on appropriateness of the earlier warning.

The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.

However, the EAT held that the tribunal had erred in concluding that B’s dismissal was nonetheless fair. Where an employee is dismissed for misconduct following a final written warning that the tribunal considers manifestly inappropriate, the tribunal should not put forward a hypothesis of its own, but should examine the employer’s reasoning and see whether or not the decision to dismiss was reasonable having regard to equity and the substantial merits of the case. This will include consideration of the extent to which the employer relied on the final written warning. In the EAT’s view, if the employer treated the warning as no more than background or as indicative of the standard to be expected of an employee, and in fact dismissed for the misconduct alleged in the new proceedings, then it may be that the dismissal was fair. If, however, the employer attached significant weight to the warning, for example starting from the position that because the employee was already subject to a final written warning, he or she should be dismissed for any significant further misconduct, it is difficult to see how the employer’s decision could be reasonable.

In the present case, the tribunal had wrongly considered the hypothetical question of whether the dismissal would have been fair had B been subject to an ordinary, as opposed to a final, written warning. Its decision therefore could not stand. As the tribunal had not made clear findings on the extent to which the BBC in fact took account of the existing final written warning, the EAT could not establish for itself whether or not B’s dismissal was fair, and the case was remitted to the tribunal for determination of this point.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2016/0335_15_0906.html