In Bandara v British Broadcasting Corporation the Employment Appeal Tribunal (EAT) upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss for further misconduct.
Mr Bandara worked as a Senior Producer in the BBC’s Sinhalese Service. In August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year. The first, for which he was charged with abusive behaviour, and refusing to follow a reasonable management request, concerned an occasion in March when he had shouted at a senior manager. He had apologised by e-mail the following day and no further action was taken. The second charge was for a breach of editorial guidelines. The disciplinary decision-maker considered that both incidents potentially constituted gross misconduct, and imposed a final written warning.
Not long after, he was subject to further disciplinary proceedings, which concerned allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. The disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded in August 2014 that he should be summarily dismissed.
The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.
Peter Stanway, our BackupHR™ legal expert comments:
An Employment Tribunal can consider whether the final warning was issued in good faith, whether there were grounds for issuing it (on the face of it) and/or whether it was manifestly inappropriate to issue it. It is not the role for the Tribunal to reopen every case in which the employee is dissatisfied with a previous sanction. It commented that “a sanction will only be manifestly inappropriate if there is something about its imposition that once pointed out shows that it plainly ought not to have been imposed.” In this case, the EAT noted that the ET found that the statement in the final written warning letter – that the conduct was capable of being gross misconduct – was misconceived and consequently that the final written warning was manifestly inappropriate.
This case highlights the need to carefully consider the rationale for issuing warnings in a disciplinary context and ensuring that this is accurately set out in the warning letter, given that the warnings may be referred to if there is an escalation of the disciplinary process.
Other lessons include:
- The need to take disciplinary action in a timely fashion (this case was riddled with delays).
- Ensure that the allegations to be considered are properly worded so the employee understands them and the implications.
- Always consider the employee’s length of service and previous record, as well as the nature of the misconduct and the likelihood of repetition.
- Ask for other reasons to mitigate the decision such as their health and the stresses they were facing.
Manifestly inappropriate is likely to be a high hurdle but should give pause for thought about what is reasonable and fair.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
