In Bandara v British Broadcasting Corporation [2016], the Employment Appeal Tribunal (‘EAT’) considered an employment tribunal's approach to the reasonableness test in a conduct dismissal where there was an active final written warning which the employment tribunal found to have been manifestly inappropriate.

Facts

Mr Bandara was a Senior Producer who had been employed by the BBC for almost 18 years. Until 2013, he had an unblemished disciplinary record, however, during 2013, two incidents arose. Firstly, in March 2013, Mr Bandara shouted at a senior manager in the course of an argument. The next day he sent an email of apology. The manager informed the HR department of the incident but no action was taken.

Secondly, in July 2013, Mr Bandara took the decision not to prioritise the story of the birth of Prince George, as the date was the 30th anniversary of Black July, a sombre date in Sri Lankan history. A manager disagreed with this decision due to widespread international coverage and the story about the royal birth only went out two hours after the Sinhala Service opened. Disciplinary proceedings were brought against Mr Bandara in August 2013 concerning both incidents, which led to a final written warning.  The decision maker considered that both incidents potentially constituted gross misconduct. Shortly afterwards, the BBC carried out an investigation into allegations that Mr Bandara had applied pressure to managers, behaved in a bullying and intimidating manger, created a culture of fear, used discriminatory terms about a manager and refused to obey instructions. Mr Bandara was subsequently dismissed for gross misconduct.

Mr Bandara brought claims in the employment tribunal of unfair dismissal, race discrimination and discrimination on grounds of belief.

Employment Tribunal (‘ET’) Decision

Mr Bandara’s claims for unfair dismissal and unlawful discrimination were dismissed by the Employment Tribunal.  The tribunal did find that the manager who took the decision to dismiss Mr Bandara for gross misconduct had taken the final written warning into account. Further, the tribunal found that the final written warning had been manifestly inappropriate. In the tribunal's view, neither of the two charges considered in August 2013 constituted gross misconduct. Nor did the decision to impose a final written warning properly take into account Mr Bandara's almost 18 years' unblemished service. However, instead of making a finding that the dismissal was unfair, the tribunal decided that, had the BBC issued an ordinary written warning and not a final written warning then the dismissal would have been fair.

Mr Bandara appealed against the conclusion that the dismissal had been fair in those circumstances, and the BBC cross-appealed against the finding that the final written warning had been manifestly inappropriate.

EAT Decision

The EAT upheld the ET's finding that the final written warning was manifestly inappropriate. The EAT agreed that Mr Bandara's conduct in the two incidents in 2013 did not amount to gross misconduct, however, the EAT found that the ET had erred in concluding that Mr Bandara's dismissal was fair. The ET had incorrectly considered the hypothetical question of whether the dismissal would have been fair if Mr Bandara had been subject to an ordinary written warning, rather than a final written warning. The correct approach would have been for the ET to examine the BBC's reasoning in making its decision to dismiss, including the extent to which the final written warning was relied upon, and whether dismissal in these circumstances fell within the range of reasonable responses.

Comment

When considering the sanction of dismissal where a prior warning remains active, an employer may wish to satisfy itself that there is nothing inappropriate about the earlier warning before relying upon it.

If there is any doubt about the appropriateness of an earlier sanction, then careful consideration should be given to the question of whether a dismissal would be appropriate if the earlier disciplinary action had involved no disciplinary sanction or a lesser sanction. If dismissal is nevertheless considered to be the appropriate sanction, in other words, the conduct in question is so bad to justify summary dismissal, the decision should be carefully recorded in the outcome letter.  If in doubt, you should seek legal advice.