Bandara v British Broadcasting Corporation ("BBC")
In this case, the Employment Appeal Tribunal ("EAT") confirmed that an employer cannot rely on a manifestly inappropriate final warning when dismissing an employee.
The claimant worked as a senior producer for the BBC and had an unblemished disciplinary record going back 18 years. However, in 2013 the claimant was charged with abusive behaviour and failing to follow editorial guidelines. The BBC considered that both incidents potentially constituted gross misconduct and a final written warning was imposed. Shortly after, the claimant was subject to further disciplinary proceedings regarding allegations of bullying and intimidation. At the conclusion of the disciplinary process, the claimant was dismissed. The claimant pursued claims of unfair dismissal.
The Employment Tribunal ("ET") rejected the claimant's claims but noted that the BBC's final written warning was "manifestly inappropriate". On appeal, the EAT confirmed that the final written warning was inappropriate, because according to the BBC's own policies, the claimant's acts did not justify a final written warning. The EAT also held that the correct test to apply in this case is whether the employer's decision to dismiss fell within the range of responses a reasonable employer may have adopted in the circumstances. The case has been sent back to the ET for a decision on this point.
This case is seen as a warning to employers as it shows the importance of ensuring that disciplinary codes and internal policies are up to date and accurate. If an employer intends to rely on earlier sanctions when dismissing an employee, it should carefully consider whether the earlier sanctions were sound before proceeding to dismiss.