Employers need sound reasons for a lawful misconduct termination
The recent case of Bandara v British Broadcasting Corporation is a cautionary tale for employers that want to use a previously issued final written warning when dismissing an employee for a further act of misconduct.
Bandara was employed by the BBC as a senior producer, working within the BBC World Service, delivering content to the Sinhalese-speaking audience in Sri Lanka and elsewhere. He had 18 years’ service.
In 2013, two incidents occurred. Bandara fell out with a manager over an instruction he had been given and then, some months later, he had initially refused to prioritise an article about a British royal family birth (Prince George), although he later relented. The BBC decided to discipline him for both incidents and issued him with a final written warning, wrongly categorising his actions as amounting to gross misconduct.
Following this, the producer found himself in further hot water, which included allegations of bullying and he was eventually dismissed for gross misconduct. The letter dismissing him referred to the previous final written warning and seemed to indicate that this had been taken into account by the manager who made the decision about his dismissal. Bandara claimed unfair dismissal, and discrimination because of race and religious belief.
Tribunal
The employment tribunal dismissed Bandara’s claims of unfair dismissal and discrimination. However, even though the tribunal had found that his dismissal was fair, it also decided that the final written warning given to Bandara in November 2013 was nevertheless “manifestly inappropriate” and that his conduct at that time only warranted an ordinary written warning.
The tribunal went on to consider whether it would have been reasonable for the employer to dismiss the producer for further acts of misconduct on the hypothetical basis that the warning had been an ordinary written warning instead. The tribunal concluded that this would have been reasonable and therefore held that the dismissal was fair.
Bandara appealed against the finding of fair dismissal and the BBC cross-appealed over the appropriateness of the previous written warning.
EAT
The Employment Appeal Tribunal (EAT) dismissed the BBC’s cross-appeal on the basis that the tribunal had not made an error in concluding that the final written warning had been manifestly inappropriate. This will be the case if there is something about the imposition of a warning that, once pointed out, “shows that it plainly ought not to have been imposed”.
The EAT then considered whether, given this fact, the employment tribunal was entitled to find the dismissal fair. It decided that an employment tribunal’s task is not to put forward a hypothesis of its own but to examine an employer’s reasoning to see whether the decision to dismiss the employee was, or was not, reasonable having regard to fairness and the substantial merits of the case. In this case, it would be necessary to examine whether the employer relied on the actual final written warning when it was dismissing the employee. The EAT commented that if the employer attached significant weight to the warning, then it would be difficult to see how the employer’s decision could have been reasonable.
It upheld Bandara’s appeal on this basis and remitted the case back to the original tribunal to consider these points.
Comment
There are a number of things that employers can take from this decision. To begin with, organisations dismissing for further misconduct following a previous final written warning might want to satisfy themselves that there was nothing inappropriate about the final written warning when it was issued. If a final written warning is ‘manifestly inappropriate’, it is likely to be more difficult for an employer to demonstrate that it acted reasonably when relying on this previous warning when dismissing for further acts of misconduct.
Alex Payton is an employment lawyer and director of law firm Howes Percival
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