Unfair dismissal: "manifestly inappropriate" final written warning

Published 7 diciembre 2016

In this case, the EAT considered when a tribunal should revisit earlier warnings in unfair dismissal claims, and the impact of taking a "manifestly inappropriate" final written warning into account when dismissing for later offences.

The facts

Mr Bandara was employed by the BBC for nineteen years. He had an unblemished disciplinary record for nearly 18 years. However, in March 2013, he was given a final written warning in relation to two incidents. During the first incident, Mr Bandara shouted at a senior manager. The following day, he sent an email apology, and nothing further was done about this until August 2013. The second incident occurred in July 2013, when Mr Bandara decided not to prioritise the story of the birth of Prince George. His manager disagreed with this decision, and Mr Bandara in due course changed his mind, and the story went out.

In August 2013, the BBC brought disciplinary proceedings against Mr Bandara for these two incidents, and he was given a final written warning. The decision letter stated that, "this is an extremely serious matter as your behaviour in relation to both incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC."

Shortly afterwards, the BBC commenced a series of further investigations against Mr Bandara, culminating in disciplinary charges and dismissal for gross misconduct. The final written warning was taken into account in the decision to dismiss.

Mr Bandara brought claims of discrimination and unfair dismissal. The discrimination claims are not considered in this alert.

The employment tribunal considered, as part of the allegations of unfairness, the fact that the BBC had taken the final written warning into account. It found that the charges against Mr Bandara for which he was awarded a final written warning, fell "squarely within the examples of misconduct and not gross misconduct". This took into account the examples of misconduct and gross misconduct listed in the BBC's disciplinary procedure. It also found that the incident during which Mr Bandara had shouted at a manager had happened several months before, he had made an unforced apology, and the incident had not been pursued internally. The incident should not have been resurrected months later. It was also relevant that Mr Bandara had eighteen years' unblemished service. The employment tribunal decided, therefore, that it was, "manifestly inappropriate to award a final written warning".

The employment tribunal found that the BBC had reasonable grounds for believing that Mr Bandara had committed the acts for which he was dismissed, and that the investigation and disciplinary process was reasonable.

The employment tribunal went on to consider what would have happened had Mr Bandara been awarded a written warning the first time round rather than a final written warning. It held that, if this had happened, the warning would still have been live and still something properly to be taken into account when the BBC was considering the later allegations. The tribunal held that the fact that it was a written warning rather than a final written warning would not have meant that the dismissal was unreasonable. It concluded, on this basis, that the dismissal was fair.

On considering the appeal, the EAT looked at the circumstances under which a tribunal should reopen previous warnings. Generally speaking, it said, earlier decisions by an employer should be regarded as background that should not be reopened, and that it should be exceptional to do so. An allegation of bad faith that has substance to it would be one example of when this should happen, as would be the situation where, on the face of it, there are no grounds for the sanction. It will also be appropriate to do so when there is something that makes the sanction "manifestly inappropriate", and a sanction will only be manifestly inappropriate if there is something about its imposition that shows that it plainly ought not to have been imposed.

The EAT agreed with the tribunal that the final written warning plainly ought not to have been imposed. The misconduct which Mr Bandara had committed did not amount to gross misconduct either on a reading of the BBC's own disciplinary procedure or by generally accepted standards.

However the EAT also held that the tribunal should not have considered what the BBC would have done had a written warning rather than a final warning been imposed the first time round. Instead, it should have considered whether the BBC had attached significant weight to the final written warning. Accordingly, the case was remitted to the employment tribunal to consider the dismissal in light of this.

What does this mean for employers?

This does not mean that employers will have to revisit live warnings in detail to decide whether they can be taken into account in subsequent disciplinary proceedings. However, when relying on a previous warning for a dismissal decision, it is always worth checking the previous warning to make sure it is relevant to the allegations for which the employee may be dismissed, and whether, on the face of it, the warning seems to be reasonable.

When dismissing for gross misconduct, prior warnings should (at the most) only be taken into account as background. A dismissal for gross misconduct can stand on its own, without reference to previous warnings.

Mr C Bandera v BBC UKEAT/0335/15/JOJ