Employers are often faced with making difficult decisions, particularly when taking disciplinary action against long serving employees who have a previously clean record. The recent case of Bandara v British Broadcasting Corporation (2016) provides a good example of some of the pitfalls to watch out for.
Mr Bandara was employed by the BBC as a Senior Producer, and had nearly 18 years’ service with an unblemished disciplinary record, until two incidents in 2013. The first incident, in March 2013, involved Mr Bandara shouting at a manager – he apologised and no further action was taken. Then, in July 2013, Mr Bandara made a decision not to prioritise the story of the birth of Prince George (he did go on to publish the story that day, but after some delay).
The BBC then sought to discipline Mr Bandara over both incidents. Mr Bandara was found guilty of gross misconduct and received a final written warning, to remain live for 12 months.
The BBC then carried out further investigations into Mr Bandara’s behaviour, leading to a disciplinary hearing in May 2014. Mr Bandara was subsequently dismissed for gross misconduct.
Mr Bandara brought claims of discrimination and unfair dismissal against the BBC. Whilst both claims were dismissed by the Employment Tribunal (ET), the ET held that the circumstances which led to Mr Bandara being given the final written warning amounted to misconduct, but not gross misconduct. The ET found that the final written warning which the BBC took into account when dismissing Mr Bandara, was “manifestly inappropriate”, and said that his previous good record should have been treated as a point his favour. The ET also concluded that the March 2013 incident “was not something which months later could fairly have been resurrected as a substantial part of a final written warning”.
Nevertheless, the ET held that the decision to dismiss Mr Bandara was one which a reasonable employer could reach in all the circumstances, and was therefore a fair dismissal. The ET’s reasoning was that if Mr Bandara had been given only a written warning the first time round, rather than a final written warning, it would still have been live and still “something properly to be taken into account” in the later decision to dismiss him. The ET found that if it was a written warning rather than a final written warning, it “would not have rendered the decision to dismiss improper or unreasonable or excessive and beyond the range [of sanctions which a reasonable employer could impose]”.
Mr Bandara appealed to the Employment Appeal Tribunal (EAT), arguing that his dismissal was unfair. The BBC cross-appealed, arguing that the final written warning was not “manifestly inappropriate”.
The EAT held that the ET was right to find that the final written warning issued to Mr Bandara was “manifestly inappropriate”, but that the ET had erred in its approach by asking itself whether the dismissal would have been fair had the BBC issued Mr Bandara with a written warning rather than a final written warning. The EAT criticised the ET for not focussing on the actual reasoning of the BBC, and whether, applying the objective standard of the reasonable employer, the BBC acted reasonably in dismissing Mr Bandara. The case was remitted back to the ET to consider this point.
This case serves as a warning to employers, to make sure that decisions to impose disciplinary sanctions are justifiable. The EAT noted that there are circumstances, albeit exceptional ones, where the ET should reopen an employer’s earlier decisions, and it held that the ET was entitled in Mr Bandara’s case to conclude that the final written warning was manifestly inappropriate. It was also noted in this case that Mr Bandara’s actions which led to the final written warning did not amount to gross misconduct under the BBC’s own disciplinary procedure.
So, in answer to the question “can dismissal be fair if the final written warning is manifestly inappropriate?”, well yes, potentially, but it would depend on whether the final written warning was relied upon by the employer when making the decision to dismiss, and whether the employer attached significant weight to that warning.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).