In Bandara v British Broadcasting Corporation the Employment Appeal Tribunal has ruled that the BBC had unfairly relied upon a “manifestly inappropriate” final written warning when dismissing a senior producer.
This is a cautionary tale for employers seeking to dismiss employees on the basis that further misconduct has taken place after a final written warning is issued. If significant weight has been attached to the final written warning and its issue was “manifestly inappropriate”, the subsequent dismissal is likely to be unfair. 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.
B was a senior producer for the BBC. He had a spotless record going back 18 years. In August 2013, he was subject to two disciplinary proceedings for abusive behaviour, refusing to follow management orders and breaching editorial guidelines. The BBC considered the incidents representative of gross misconduct and issued a final written warning.
Soon after, B faced fresh disciplinary proceedings involving abuse towards colleagues and not following orders. The BBC found the allegations to be true and summarily dismissed B on 15 August 2014.
The ET dismissed B’s claims of unfair dismissal and race discrimination, but did find that the final written warning had been “manifestly inappropriate” and that an ordinary warning would have been more suitable. B’s actions did not fit the definition of “gross misconduct” under BBC policy or by general standards; he also had 18 years unblemished service and had apologised for his actions. B appealed against the unfair dismissal decision and the BBC cross-appealed over the appropriateness of the written warning.
The EAT held that the ET had erred in finding a fair dismissal. However, it did agree that the final written warning had been inappropriate. The ET had wrongly focused on whether the dismissal would have been fair had it been a hypothetical ordinary written warning. The EAT held that the ET should instead focus on the reasoning of the dismissing employer and whether it had acted reasonably. That meant examining the extent to which the inappropriate final written warning had been relied upon by the BBC. The case was remitted back to the ET for the determination of this point.
Hannah Pryce comments: “The EAT felt that if the BBC had not attached significant weight to the inappropriate final written warning and had instead used it only as background or merely as an indication of employee standards, the judge may have been able to find the dismissal fair.”
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