Springhouse Solicitors

Final written warning could not be relied on

In this case, brought against the BBC, the Claimant successfully argued that his dismissal had been unfair because the final written warning relied on was “manifestly inappropriate”. This case gives rise to interesting questions about how and when written warnings can be taken into account when dismissing employees.

Background

The Claimant in this case Mr Bandara was a senior producer in the BBC Sinhalese Service. He had been employed by the BBC for 18 years with an unblemished record. He was, however, disciplined in August 2013 for having previously shouted at his manager (he apologised for this and no action was taken at the time) and, sometime later, for prioritising coverage of the 30th anniversary of Black July (significant in Sri Lankan history) over the birth of Prince George on the previous day.

The BBC decided that these matters could amount to gross misconduct and imposed a final written warning.

Subsequently – approximately 1 year later – various other disciplinary proceedings were brought against Mr Bandara relating to bullying, intimidation, abusive behaviour and refusing to obey reasonable instructions.

He was dismissed because he was under a current final written warning.

In considering the case, the Appeal Tribunal relied on previous case law which states that Tribunals should not re-open old disciplinary proceedings, unless they were “manifestly inappropriate”. The EAT concluded that the initial warning was in this case manifestly inappropriate. The BBC should have considered what weight was should be given to the initial warning. If it was being treated merely as background, then the dismissal may have been fair. However if significant weight was attached to the first warning (which was manifestly inappropriate) then the dismissal would be unfair, as it was in this case.

Implications

This case gives an interesting clue as to how a company should approach a dismissal where they are concerned that any initial warnings had been heavy-handed. This would apply in any other case where the employer is relying on a previous warning and wants to “play it safe”.

The trick would be to have a close look at the circumstances of the previous warning and make an express, written, decision as to the significance that will be attached to it. Employers will be given some latitude in their assessment of this because of the “band of reasonable responses” test, which allows for a number of fair approaches.