If a final written warning was found to be manifestly inappropriate such that the employer ought to ignore it when considering further misconduct, is it open to the Employment Tribunal (ET) to consider whether dismissal would have been fair if only a written warning had previously been given?
No, held the Employment Appeal Tribunal (EAT) in Bandara v BBC.
Mr Bandara was employed by the BBC as a Producer since 20th July 1995. In the period up to 2013, nearly 18 years, Mr Bandara had an unblemished disciplinary record. However, two incidents led to the loss of that unblemished record.
The first occurred on 18th March 2013 when Mr Bandara had an argument with his colleagues over the organisation of a training course. The second occurred on 23rd July 2013 when Mr Bandara prioritised the 30th anniversary of Black July in Sri Lanka over the birth of Prince George.
In August 2013, the BBC brought disciplinary proceedings against Mr Bandara and was subsequently charged with using abusive behaviour and breaching editorial guidelines. He was given a Final Written Warning.
Shortly afterwards, the BBC commenced further investigations into Mr Bandara which culminated in further disciplinary charges. A disciplinary hearing took place on 14th May 2014, following which Mr Bandara was summarily dismissed.
Mr Bandara brought a claim of unfair dismissal in the ET, the hearing of which took approximately 8 days.
The ET found that the BBC had reasonable grounds for the believing Mr Bandara had committed the acts in March and August 2013, that there had been an extensive investigation and that the disciplinary process was reasonable.
However the ET held that Mr Bandara’s Final Written Warning was too severe a punishment for an employee with such a good record, describing it as manifestly inappropriate. Therefore the dismissal was unfair.
But the ET was also satisfied that Mr Bandara no longer had a clean disciplinary record, and therefore reduced his compensation by 50%. Consequently Mr Bandara was awarded £51,428 in compensation plus £1,200 in costs.
The BBC appealed to the EAT.
Employment Tribunal Appeal
The task of the EAT is to correct errors of law. It cannot substitute its own view for that of the ET.
The EAT held that the ET was entitled to conclude that Mr Bandara’s sanction (gross misconduct and therefore a Final Written Warning) ought not to have been imposed. The ET was also correct in taking the view that Mr Bandara’s misconduct did not amount to gross misconduct, and the EAT could see no error of law in the ET reaching that conclusion. Therefore the imposition of the Final Written Warning was manifestly inappropriate.
However, the EAT held that the ET was mistaken in its application of the law. Rather than asking whether it was reasonable to dismiss Mr Bandara on the footing that the Final Written Warning given had actually been an Ordinary Written Warning, the ET should have focussed upon the actual reasoning of the BBC and asked whether, applying the objective of the reasonable employer, it acted reasonably in dismissing Mr Bandara.
The case was referred back to the ET for a full hearing to determine whether the dismissal was unfair, i.e. was it fair for the BBC to dismiss Mr Bandara who had an Ordinary Written Warning, not a Final Written Warning.
It was not for the ET to consider whether it was fair to dismiss Mr Bandara for a hypothetical written warning. The right approach was to focus on the actual reasoning of the dismissing employer and to consider whether it acted reasonably. That meant asking how much weight had been given to the inappropriate warning when the employer decided to dismiss.
If you are looking to dismiss an employer for gross misconduct, you should obtain legal advice to ensure the dismissal is fair and reasonable. The last thing you want as a business is for the matter to cost you time and money, as in the case of the BBC.
Employers who have queries regarding the above should contact Sally Morris at email@example.com or on 01905 734032.