Dismissal When Final Written Warning 'Manifestly Inappropriate'

Workplace disciplinary processes often have a number of distinct phases, and legal errors in any one of them can be enough to infect the whole. That point was made in the case of a BBC producer who was dismissed after being issued with a manifestly inappropriate final written warning (Bandara v British Broadcasting Corporation).

Mr Chandana Bandara was employed by the BBC as a senior producer within the Sinhala Service, which was made up of a team of about ten people. He had a record of nearly 18 years' unblemished service with the BBC when two incidents led to disciplinary action being taken against him. The first of these was a disagreement with a senior manager over whether it was his responsibility to book his team on a training course as instructed. He had apologised to the manager after shouting at her during the argument and no further action was taken. The final written warning was issued following a dispute with another manager as to whether it was appropriate to broadcast a particular news story. The warning was to remain live for 12 months.

Shortly afterwards, a series of further investigations into Mr Bandara's conduct culminated in additional disciplinary charges and, following a disciplinary hearing, he was summarily dismissed. He was, amongst other things, found to have behaved in a bullying and intimidating manner and to have been involved in creating and perpetuating a 'culture of fear' within the Sinhala Service. An Employment Tribunal (ET) subsequently found that the warning given to Mr Bandara was a wholly inappropriate response to the behaviour alleged, as the charges found against him fell squarely within the definition of misconduct rather than gross misconduct as described in the BBC's disciplinary procedure. Nevertheless, the ET rejected his unfair dismissal claim on the ground that, had he been given only a written warning after the first two incidents, this would still have been live at the time of the second disciplinary process, thus rendering the decision to dismiss him one which a reasonable employer could reach in the circumstances.

In overturning this ruling, the Employment Appeal Tribunal (EAT) found that the ET was entitled to find that the imposition of the final written warning was manifestly inappropriate but had failed to address this finding correctly when ruling that the dismissal was nevertheless fair. The ET's task in such cases is not to put forward a hypothesis of its own but to examine the reasoning of the employer to determine whether the decision to dismiss the employee was objectively reasonable. Whether or not Mr Bandara's dismissal was fair depended, in large part, on the extent to which the existence of the flawed warning on his employment record had been taken into account by the final decision maker. The ET's job was to carry out a factual assessment as to whether or not that person had attached significant weight to the warning when deciding to dismiss Mr Bandara. In the circumstances, the case was sent back to the same ET for reconsideration.