The EAT has held in Bandara -v- British Broadcasting Corporation 2016 that the Employment Tribunal erred in going on to consider the hypothetical situation of what would have happened if the employee had received a written warning as opposed to a final written warning, in a situation where the final written warning that had been given was manifestly inappropriate.

Mr Bandara had worked for the BBC for 18 years and had a clean disciplinary record. However, following two incidents at work (shouting at a colleague, and taking an editorial decision not to prioritise news coverage of the birth of Prince George) he was issued with a final written warning. Following a further incident a few months later, Mr Bandara was dismissed. The Employment Tribunal held that although the final written warning was inappropriate, the dismissal was nonetheless fair, as in the Tribunal’s view he still would have been dismissed even if he’d had just a written warning on his record.

The EAT held that this was the wrong question to ask. It agreed that the final written warning had been manifestly inappropriate, but held that rather than examining the hypothetical question of how the scenario would have played out if Mr Bandara had only a written warning on his file, the Tribunal should have considered instead the reasonableness of the decision to dismiss, in the context of the inappropriate final written warning. For example, the employer may have considered that the final warning was no more than background information, and the new offence was sufficient alone to justify dismissal (in which case the dismissal could be fair, even though the final warning was inappropriate). Alternatively, the employer may have attached significant weight to the warning, starting from the position that due to the final warning in place, any further serious misconduct could justify dismissal. In this case the dismissal would likely be unfair.

The case was remitted to the same Tribunal.