Inappropriate final written warnings

The background

• Unfair dismissal: reasonableness

Once an employer has established that it has dismissed for one of the "potentially fair reasons" under section 98(1), Employment Rights Act 1996 (ERA 1996), an employment tribunal must go on to consider whether the employer acted reasonably in dismissing the employee for that reason.

Whether the employer acted 'reasonably' depends on whether, in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably in treating that reason as a sufficient reason for dismissal, in accordance with "equity and the substantial merits of the case" (section 98(4) ERA 1996).

• Dealing with previous warnings

Whether a final warning is "manifestly inappropriate" is one of the material factors an employment tribunal may consider when assessing the reasonableness of the decision to dismiss. In a 2013 case called Wincanton Group Plc v Stone, the Employment Appeal Tribunal (EAT) summarised the general principles to be applied by employment tribunals when considering earlier warnings. If a tribunal is satisfied that an earlier warning was manifestly inappropriate, that warning will not be valid and cannot be relied upon by an employer to justify dismissal.

The facts

Mr Bandara worked as a Senior Producer for the BBC's Sinhala Services, which delivers media content to the Sinhalese speaking audience in Sri Lanka and around the world.

He had an unblemished service record for nearly 20 years until March 2013, when he shouted at a manager. He did apologise by email, albeit that the employment tribunal described the apology as being "a bit mealy mouthed".

Four months later, news of the birth of Prince George broke, and hit the headlines across the world. However, Mr Bandara, in disagreement with a manager, decided that this should not be treated as a headline item because the date coincided with the 30th anniversary of Black July: a sombre date in Sri Lankan history.

Disciplinary charges against Mr Bandara, in relation to both incidents, were upheld and a final written warning was issued, to remain active for 12 months.

Shortly afterwards, the BBC carried out an investigation into a range of fresh allegations, such as bullying, intimidation and refusal to follow instructions. Following a disciplinary hearing, Mr Bandara was summarily dismissed for gross misconduct.

Mr Bandara brought claims of unfair dismissal and discrimination. An employment tribunal found that the dismissal was fair, but dismissed the complaints of discrimination.

The tribunal found that the manager who took the decision to dismiss Mr Bandara for gross misconduct had taken the final written warning into account, but it was "manifestly inappropriate": neither of the two initial charges constituted gross misconduct, whether with reference to the BBC's disciplinary policy or by generally accepted standards.

Having found that the final written warning was manifestly inappropriate, the tribunal then considered what the hypothetical position of the employer would have been if the warning had been a written warning - would the decision to dismiss have been fair if the final written warning had been a written warning? The employment tribunal decided that, in those hypothetical circumstances, the dismissal would have been fair.

Mr Bandara appealed.

The decision

In Bandara v the British Broadcasting Corporation, the EAT found that the employment tribunal had been incorrect to pose the hypothetical question regarding the warning.  The EAT noted that the correct starting point for an employment tribunal, when considering the fairness of a dismissal, is the reasoning of the employer when making the decision to dismiss – and, crucially, whether it was reasonable or not to do so, having regard to equity and the substantial merits of the case.

The question of how the employer would have responded to a hypothetical situation in which a different warning had been given was a different question. For example, it could be that the employer actually treated the inappropriate final written warning as merely background and, in reality, dismissed the employee for the fresh misconduct alleged – in that case, the dismissal may have been fair. In other words, it is the tribunal's job to examine whether the employer relied on the inappropriate final written warning.

The EAT upheld Mr Bandara's appeal and sent the case back to the same employment tribunal to be re-considered.

What does this mean for me?

In practical terms, this case highlights a number of points regarding the correct operation of a disciplinary investigation procedure.

1. The EAT noted that the employer would have been unlikely to have fallen into error if the investigation and decision to dismiss had been separated out and undertaken by different managers. It is always advisable to ensure that different personnel undertake a disciplinary investigation and hearing.

2. The EAT found that a "manifestly inappropriate" warning should be defined as one which "plainly ought not to have been imposed" and, should not, therefore be relied upon by a dismissing manager. It is, therefore, advisable that dismissing managers consider the validity of a final written warning when making a decision to dismiss.

3. 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.