Inappropriate final written warning can be dangerous to rely upon when looking to dismiss

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The recent case of Bandara v British Broadcasting Corporation (2016) highlights the need to think carefully when issuing disciplinary sanctions, not only at the dismissal stage but in previous warnings.

The Employment Appeal Tribunal (EAT) ruled that the BBC had unfairly relied upon a “manifestly inappropriate” final written warning when dismissing a senior member of staff.

Background

Mr Bandara (B) had been employed at the BBC for 18 years. Having previously had a clear disciplinary record, B received a final written warning in August 2013 for breaching his editorial guidelines and being verbally abusive towards a colleague.

In August 2014, he was summarily dismissed due to making a number of derogatory comments to colleagues and generally creating a culture of fear. It was apparent from the BBC’s letters and deliberations that B’s final warning was taken into account by them in reaching their decision to dismiss him.

Findings

Whilst the allegations which led to B’s dismissal were dismissed by the Employment Tribunal (ET), they did find that the final written warning had been “manifestly inappropriate” and that an ordinary (first written) warning would have been more suitable, particularly given his length of service and previously unblemished record.

B appealed against the unfair dismissal decision and the BBC cross-appealed over the appropriateness of the written warning.

The Employment Appeal Tribunal held that whilst the ET was correct in its finding that the original final warning was not appropriate, it had been wrong to guess at what might have happened had B been given a different warning in the first place.

The EAT ruled that in similar situations, ET’s should instead focus on the reasoning of the dismissing employer and whether it had acted reasonably according to the usual standards of fairness. That meant examining the extent to which the inappropriate final written warning had been relied upon by the BBC.

Observations

Alleged misconduct should be carefully assessed in line with an employer’s disciplinary policies. Employers should ensure there is a sound basis for issuing any level of warning and that a fair process is used to do so.

When reviewing disciplinary matters employers should consider:

  • Experience & length of service
  • Nature of conduct
  • Awareness of standards
  • Previous record
  • Opportunity to improve
  • Likelihood of repetition
  • Similar cases
  • Reasonableness of decision

If you would like to discuss further the implications of any disciplinary process upon you or your business, then please do not hesitate to contact any of the Employment team.

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