Unfair dismissal: What should an Employment Tribunal's approach be where previous disciplinary action is found to be "manifestly inappropriate"?

In the case of Bandara v BBC (2016), the Employment Tribunal held that a final written warning was "manifestly inappropriate", and should have been ignored when considering further misconduct. This case raised the question of whether the Employment Tribunal should consider whether dismissal would have been fair if only a written warning, not a final written warning, had been previously given.

Background

Mr Bandara had worked for the BBC for 18 years with an unblemished record. In July 2013, he was tasked with publishing a story on the birth of Prince George. However, he decided that he would not prioritise the story because it was the 30th anniversary of Black July, a sombre date in Sri Lankan history.

Despite later changing his mind and publishing the story, Mr Bandara faced disciplinary action and was charged with refusing to follow a reasonable management request and breach of editorial guidelines. These charges were upheld and led to the BBC imposing a final written warning. Shortly afterwards, the BBC commenced a series of further investigations against Mr Bandara which resulted in him being summarily dismissed. Mr Bandara bought a claim for unfair dismissal, race discrimination and discrimination on the grounds of religion or belief.

The Employment Tribunal found that the BBC had taken the final written warning into account when deciding to dismiss Mr Bandara for gross misconduct. However, the Tribunal concluded that the final written warning was manifestly inappropriate, and what Mr Bandara had done did not amount to gross misconduct; he had 18 years of unblemished service.

The Tribunal also found that a written warning for the first issue would have been legitimate, but that a final written warning was manifestly excessive. The Tribunal then asked itself:  "suppose Mr Bandara has been given a written warning; would the decision to dismiss have been fair?"

The BBC appealed the Tribunal's decision to the EAT on two grounds:

1. The Tribunal substituted its own view for the objective view of the reasonable employer; and
2. The Tribunal wrongly equated 'manifest inappropriateness' with the range of reasonable responses test.

EAT decision

The EAT held that it is not the task of the Employment Tribunal to consider whether it was fair to dismiss for a hypothetical written warning. The Tribunal should have focussed on the actual reasoning for dismissing Mr Bandara, and considered how much weight the BBC had given to the inappropriate final written warning when they decided to dismiss him. The EAT remitted this case back to the Employment Tribunal to consider that point.

Comment

This case highlights the need to think carefully when issuing disciplinary sanctions, not only  at the dismissal stage but also initial warnings, and also when reaching a decision to dismiss which is based partly on earlier warnings.

In considering any level of disciplinary sanction for misconduct, employers should consider the employee's experience, length of service and previous record, as well as the nature of the misconduct, the likelihood of repetition, and similar examples at work.