The recent case of Bandara v British Broadcasting Corporation involved an employee who was dismissed for misconduct which took place after a final written warning in relation to previous conduct.

The Employment Tribunal’s Decision

The Employment Tribunal decided that the final written warning was manifestly inappropriate, but that despite this the subsequent dismissal was still fair in the circumstances. In the Tribunal’s judgment, if the employee had been given only an ordinary written warning instead (which would have been fair), such warning would have been permissible for the employer to take into account in taking the decision to dismiss the employee. As such, the Employment Tribunal held that the dismissal was fair.

The Employment Appeal Tribunal’s Decision

There were two broad questions before the Employment Appeal Tribunal (EAT) in relation to the Employment Tribunal’s previous decision. The first question was whether the Employment Tribunal was correct to have held that the final written warning was manifestly inappropriate. The second question was whether the Employment Tribunal had made an error of law in questioning whether the dismissal would have been fair in the hypothetical situation that only a ordinary warning (rather than a final warning) had been given.

In relation to the first question, the EAT held that the Employment Tribunal had been absolutely entitled to conclude that the final written warning was manifestly inappropriate. The Employment Tribunal had held as such because the types of acts committed by the employee clearly did not warrant a final warning according to the employer’s policies. As such, it was impossible to justify a final written warning as being appropriate.

In relation to the second question, the EAT held that the Employment Tribunal had made an error as to the law. Having decided that the final written warning was manifestly inappropriate, it should not have gone on to consider whether the dismissal would have been fair if only an ordinary written warning had been previously given. The EAT stated ‘The Employment Tribunal’s task is not to put forward a hypothesis of its own but to examine the reasoning of the employer’. In doing so, it needed to have regard to whether the employer relied on the final written warning. If it had treated the final written warning as no more than background, then it was possible that the decision to dismiss could be justified. However, if they had attached significant weight to the manifestly inappropriate final written warning, then it was difficult to see that the employer’s decision was reasonable. This is a factual assessment which needs to be made and the case has therefore been remitted back to the Employment Tribunal to decide upon the weight attached to the final written warning.

Practical Tips

This is a warning to employers and spells out, in particular, the importance of having regard to an employer’s very own disciplinary code. Here a final warning was given which was not even justifiable according to their own procedures, and not following the correct process in relation to the previous circumstances gave rise to the employer being put into difficulties at a later stage when it had decided to dismiss the employee in relation to fresh circumstances. Careful consideration needs to be given to internal policies, the ACAS code and the law when dealing with such issues through all stages of the process.