November 30, 2016

Unfair Dismissal and Appropriateness of Final Written Warning

In Bandara v British Broadcasting Corporation UKEAT/2016/0335/15/JOJ, the Employment Appeal Tribunal (EAT) considered the fairness of a dismissal where the employer had relied on a previous final written warning which was “manifestly inappropriate”.

Mr Bandara (B), a senior producer, had worked at the BBC for 18 years. He boasted an unblemished disciplinary record until 2013 when he received a final written warning after having been subject to two disciplinary proceedings: one for shouting at a senior manager, and the other for prioritising an event of historical importance in Sri Lanka over the birth of Prince George. While the final written warning was still active, further disciplinary action was taken against B, following which he was summarily dismissed for gross misconduct. He brought a number of claims, including for unfair dismissal.

At first instance, the Employment Tribunal dismissed B’s claims but found that the final written warning given in 2013 had been “manifestly inappropriate”. On appeal, the EAT found that the Employment Tribunal had been entitled to find that the final warning was “manifestly inappropriate” in light of the misconduct. However, in its assessment of whether the BBC’s decision to dismiss fell within the band of reasonable responses open to it, the Employment Tribunal had failed to consider the amount of weight given by the BBC to the final warning in its decision to dismiss. The EAT’s view was that if the BBC had simply treated the warning as no more than background, then the dismissal may have been fair; however, it if had placed significant weight on it, then it was difficult to see how the decision could have been reasonable. The EAT remitted the case to the Employment Tribunal to determine this point.

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