Case update (3): Unfair dismissal – reliance on previous warnings

Summary: When taking into account a manifestly inappropriate earlier warning in deciding to dismiss, is the question of how much weight the employer puts on the earlier warning relevant to the reasonableness of the dismissal?

Yes, says the EAT in the decision of Bandara v British Broadcasting Corporation, available here.  (However, if the employer attaches significant weight to a manifestly inappropriate warning, the EAT considered that it was difficult to see how the employer’s decision could be reasonable).

Facts:  The employee, Mr Bandara, was employed as a producer by the BBC in the Sinhala Service.  Mr Bandara had an unblemished record for 18 years.  On 18 March 2013 he had an argument about a work related matter (his failure to book his team on a training course) with a manager which resulted in Mr Bandara shouting at his manager.  He apologised to her by email the following day.  The incident was reported to HR but no action was taken.

On 23 July 2013, the day after Prince George was born, Mr Bandara decided not to give that top billing when the Sinhala Service opened at 10am due to another important story.  Another manager arrived shortly afterwards and disagreed with this decision.  Mr Bandara also changed his mind and the story regarding the birth of Prince George went out on the Sinhala Service at 12.08.

In August 2013, disciplinary proceedings were brought against Mr Bandara based on these two incidents.  In relation to the earlier incident in March 2013 he was accused of abusive behaviour and refusal to follow a reasonable request by a manager and the latter incident was classified as a potential breach of editorial guidelines.

The allegations were upheld and a final written warning issued in November 2013 in which it was stated that Mr Bandara’s conduct “potentially constitutes gross misconduct” but it was acknowledged that his “behaviour has never been formally addressed before”.  The final written warning was to remain live for a period of 12 months.

Shortly after issuing Mr Bandara with the final written warning, the BBC investigated a series of new allegations against him, which resulted in his dismissal for gross misconduct.  The letter of dismissal referred to the final written warning and stated “although not connected to my investigation I have taken into consideration that you currently have a final written warning which is still active…”

Mr Bandara brought a claim of unfair dismissal in the Tribunal. The Tribunal found that the final written warning was manifestly inappropriate and that the BBC had taken this warning into account in its decision to dismiss. The Tribunal referred to the failure on the part of the decision maker to take into account Mr Bandara’s long, unblemished service and the delay between the incident in March 2013 and the subsequent disciplinary proceedings in August 2013.  It felt that Mr Bandara was entitled to think that the matter had been laid to rest by that time.  Further, the Tribunal said that the decision maker had improperly considered unproven, uncharged issues which had been uncovered during the disciplinary process.  Mr Bandara should have received an ordinary written warning and, if that had been the case, that warning would have been “something properly to be taken into account” when the BBC considered matters.

Having found that the final written warning was manifestly inappropriate, the Tribunal then went on to ask itself whether it would have been reasonable for the BBC to dismiss Mr Bandara for further acts of misconduct on the basis that the warning had instead been an ordinary written warning. The Tribunal concluded that it would have been reasonable and, on this basis, decided that the dismissal was fair and dismissed Mr Bandara’s unfair dismissal claim.

Mr Bandara appealed to the EAT and the BBC cross-appealed the finding that the final written warning was manifestly inappropriate.

The EAT dismissed the BBC’s cross-appeal and found that the Tribunal was entitled to take the view that the final written warning was manifestly inappropriate for the reasons that the Tribunal gave in its decision.

However, the EAT did uphold Mr Bandara’s appeal and found that the Tribunal should have focused on the actual reasoning of the BBC and asked whether, applying the objective standard of the reasonable employer, it had acted reasonably in dismissing Mr Bandara.

The Tribunal’s task is not to put forward a hypothesis of its own, but to examine an employer’s reasoning. To do so, it must examine whether and to what extent the employer relied on a final written warning.  If the employer attaches significant weight to a manifestly inappropriate warning, the EAT considered that it was difficult to see how the employer’s decision could be reasonable.

As the Tribunal did not ask itself how the BBC took account of the final written warning and whether this was reasonable, the EAT remitted the case to the same Tribunal to make further findings.

Implications:  Tribunals are entitled to revisit a previous warning if there are suggestions that the warning was either manifestly inappropriate or given in bad faith, (regardless of whether the employee appeals the warning).   If a Tribunal finds that a warning is manifestly inappropriate, an employer would be unwise to rely on that warning and it will be harder for the employer to show that its decision to dismiss falls within the band of reasonable responses.

In light of the above, when considering the sanction of dismissal where a prior warning remains active, an employer should satisfy itself that there is nothing inappropriate about the earlier warning before relying upon it. Equally, a decision to issue a final warning should be taken only after a proper investigation and fair process, otherwise it will likely be unfair to take this into account in any subsequent decision to dismiss.

Where there is an active warning on file but a dismissal is on account of standalone gross misconduct, employers should make clear in the dismissal letter that the gross misconduct alone was the reason for dismissal. This may avoid the appropriateness (or otherwise) of the earlier warning being brought into question.