In Bandara v British Broadcasting Corporation the EAT held that a Tribunal had erred in finding it was reasonable to summarily dismiss an employee in circumstances where a "manifestly inappropriate" final written warning had been taken into account. The Tribunal had failed to address the weight given to the final written warning in reaching the later decision to dismiss. Instead, it had speculated on what would have happened if the initial warning had been at an appropriate level. This was not the right approach. The Tribunal's finding that the dismissal was fair was overturned and the case was remitted.

Background

In order to effect a fair dismissal, an employer must: (i) establish a potentially fair reason for the dismissal; and (ii) have acted reasonably in dismissing the employee for that reason. In conduct dismissal situations, this will involve following a disciplinary procedure that meets the requirement of the ACAS Code of Practice on Discipline and Grievance, prior to the dismissal.

When deciding whether dismissal is the appropriate sanction, an employer is entitled to take into account previous live warnings. However, case law has confirmed that if a previous warning was "manifestly inappropriate", then it cannot be relied upon by the employer to justify a disciplinary sanction for subsequent misconduct. Employment Tribunals are obliged to scrutinise the legitimacy of previous warnings if there is a concern that they are manifestly inappropriate.

Facts

The claimant was employed by the BBC as a Senior Producer working within the Sinhala Service. The Sinhala Service was part of the BBC Asia Region and delivered content to the Sinhalese speaking audience in Sri Lanka and around the world. In the period up to 2013, the claimant had an unblemished disciplinary record of nearly 18 years. However, the followed events then occurred:

  • In March 2013, one of the claimant's managers, Ms Swe, asked him to book his team onto a training course. The claimant refused and said that this task was not his responsibility. The claimant shouted at Ms Swe but apologised the following day. Ms Swe reported the matter to HR, but no action was taken at that time.
  • Prince George was born on the evening of 22 July 2013, after the Sinhala Service had closed. On 23 July 2013, the Sinhala Service opened at 10.00am. The claimant decided not to prioritise the story of the birth. This was because the 23 July was the 30th Anniversary date of "Black July", a sombre date in Sri Lankan history. However, the claimant had changed his mind following discussions with another manager, Mr Radojevic and the story of the birth was eventually published at 12.08pm.

In August 2013, the BBC brought disciplinary proceedings against the claimant in respect of both incidents. The decision was that these offences potentially amounted to gross misconduct and a final written warning was issued.

Shortly thereafter, further disciplinary charges were brought against the claimant in relation to various matters linked to bullying and abusive behaviour. The claimant was summarily dismissed on 15 August 2014. In reaching this decision, the dismissing officer had taken the live final written warning into account. The claimant went on to bring claims for unfair dismissal and discrimination. This summary looks at the decision on the unfair dismissal claim only.

Employment Tribunal decision

The Tribunal decided that the March and July incidents fell "squarely" within the examples of misconduct, rather than gross misconduct, set out in the BBC's own disciplinary procedure. It also found that the sanction for the March and July incidents had failed to take into account the claimant's clean disciplinary record. It concluded that a first written warning would have been appropriate and a final written was "manifestly inappropriate" in all the circumstances.

In considering whether the ultimate dismissal was fair, the Tribunal found the manifestly inappropriate final written warning had been taken into account by the dismissing officer. However, it went on to decide that it would still have been reasonable to have summarily dismissed the claimant if that warning had been reduced to a first written warning (as it felt should have been the case). Therefore, it said the dismissal had been fair.

The claimant appealed and the BBC cross-appealed the decision that the final written warning had been manifestly inappropriate.

EAT decision

The EAT dismissed the BBC's cross-appeal. It concluded that a warning will be manifestly inappropriate where it is shown that it plainly ought not to have been imposed. This was the case here.

It went on to uphold the claimant's appeal. The Tribunal erred in considering whether it would still have been fair to have dismissed the claimant if a first written warning had been given instead of the final written warning. Rather than crystal-ball gazing as to what would have been reasonable in that scenario, the Tribunal should have looked at the reality of the situation before it. It should have looked at the reasoning of the BBC and decided whether it was reasonable to have dismissed in the circumstances. This required it to look at the extent to which the final written warning was a factor in the dismissal decision. It was possible that the dismissal could still be fair if an inappropriate warning formed part of the background only. However, if "significant weight" was attached to it, then the dismissal was likely to be unfair.

The case was remitted to the Tribunal to consider the issue. In turn, it concluded that the manifestly inappropriate warning had been given significant weight, meaning that the dismissal was unfair.

Comment

Nothing in this decision says that employers are not entitled to rely on previous warnings when deciding the appropriate sanction for a subsequent disciplinary offence. Instead, it reminds us that employers must take care to ensure that the level of warning is appropriate to the misconduct taking account of all the circumstances. This will include a consideration of matters such as the categorisation of misconduct offences in the employer's own disciplinary rules, as well as mitigating factors such as the employee's disciplinary record and whether they have shown remorse. If an unwarranted warning is relied upon, this may undermine the employer's ability to dismiss fairly for subsequent offences.

From a practical perspective, employers should review disciplinary rules at regular intervals to ensure they properly categorise the standards of behaviour expected from employees. In addition, employers should ensure that those chairing disciplinary processes receive training on how to conduct and conclude such processes. They should also be encouraged to consult with HR on the proposed sanction. Although cases such as Chhabra and Ramphal tell us that HR should not stray into the territory of advising on the right level of sanction, it is permissible for them to advise on whether the sanction is consistent with that given in similar situations within the business.

Bandara v British Broadcasting Corporation