Labour & European Law Review Weekly Issue 502 11 January 2017
When deciding whether a misconduct dismissal is within the band of reasonable responses, tribunals may consider whether a past final written warning is manifestly inappropriate. In Bandara v BBC, the Employment Appeal Tribunal (EAT) held that the tribunal should have considered the employer’s reasoning including the extent to which they relied on the final written warning when determining if the dismissal was reasonable.
Mr Bandara, a senior BBC producer with the Sinhala Service, was disciplined in August 2013 as a result of two incidents. The first occurred in March when he allegedly swore at a manager although he apologised the next day; the second occurred in July when he allegedly failed to follow editorial policy. In a letter dated 19 November 2013, the BBC upheld both the charges and he was given a final written warning which was to stay on his record for 12 months.
Shortly afterwards, Mr Bandara was the subject of a further investigation, based on allegations that he had bullied and harassed other colleagues. After a disciplinary hearing in May 2014, he was found guilty of gross misconduct and summarily dismissed in August. The letter of dismissal stated that the final written warning (which was still active) had been “taken into consideration”.
The tribunal held that the final written warning given to Mr Bandara in August 2013 was “manifestly inappropriate”, not least because he had 18 years’ unblemished service, he had sent an immediate apology to the manager after the first incident, and there was a significant delay between the date on which it occurred and the disciplinary hearing.
The tribunal found that he should have received a written warning (as opposed to a final written warning), and held that this did not render the decision to dismiss him “improper or unreasonable”. Rather, it concluded that the decision to dismiss was “one which a reasonable employer could reach in all the circumstances”.
Mr Bandara appealed and the BBC cross-appealed.
The EAT held that the tribunal had not erred by concluding the final written warning in August 2013 was manifestly inappropriate. The tribunal was entitled to find that the misconduct of which Mr Bandara was accused did not amount to gross misconduct either by the BBC’s own disciplinary procedure or by generally accepted standards. Likewise, the tribunal had not substituted its own view for that of the employer when it held that it was inappropriate to impose a final written warning.
However, the tribunal should then have examined the employer’s reasoning and the extent to which they relied on the final written warning. If the employer treated it as no more than “background” or as an indication of the standards the employee was expected to meet and in reality dismissed the employee for the new disciplinary proceedings, a tribunal may be entitled to find that the dismissal was fair. However, if the employer attached significant weight to the warning, (namely that the employee was to be dismissed for any significant misconduct because of the final written warning), then it was difficult to see how their decision to dismiss could be reasonable.
The tribunal had posited its own hypothesis about whether the decision to dismiss would be fair had Mr Bandara just been given a written warning. That was an error of law. The matter was therefore referred back to the original tribunal to determine whether the employer relied on the final written warning and if the decision to dismiss was reasonable in light of those findings having regard to equity and the substantial merits of the case.