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In my last Insight piece, A Warning About Warnings, I discussed the circumstances in which an employer may take account of expired warnings for the purposes of determining the outcome of a subsequent disciplinary process. But what if a final written warning is clearly live so that, on the face of it,  the employer is entitled to take account of that warning? Surely the employer who treats subsequent misconduct taken together with the final warning as sufficient to dismiss is likely to be on safe ground?

But what if the employee argues that it was unfair of them to have been given the final written warning? Does the employer in the subsequent process have to reopen the previous matter and assesses the legitimacy of the final written warning? If a claim is raised should the Employment Tribunal consider whether the employee should have been issued with the final written warning in determining whether the subsequent dismissal is fair? If they can, and do find the earlier warning to have been unjustified this may have a significant impact on the ability to argue that the subsequent dismissal was fair because, in the absence of gross misconduct meriting dismissal of itself, it is unlikely that a reasonable employer would have dismissed for subsequent misconduct which does not follow upon a valid final written warning.

In the recent case of Bandara v BBC this situation arose with a surprising outcome at the initial Employment Tribunal stage. After 18 years of unblemished service Mr Bandera, a senior producer in the BBC’s Sri Lankan service was issued with a final written warning in respect of two incidents which the BBC had regarded as gross misconduct. The first related to his shouting at a senior colleague for which he later apologised and the second, perhaps bizarrely, arose because he prioritised the coverage of the thirtieth anniversary of Black July, a significant date in Sri Lankan history over the birth of Prince George, apparently in breach of editorial guidelines. Following further acts of misconduct (which again were actually regarded as gross misconduct) but where the final written warning was taken into account Mr Bandara was dismissed.

The Employment Tribunal found that the final written warning was “manifestly inappropriate” but then considered whether it would have been fair to dismiss Mr Bandara if the previous warning had instead been an ordinary warning. They decided it would have been so that his dismissal was fair.
On appeal , taking account of previous case law, the Employment Appeal Tribunal stated that in general earlier decisions should not be reopened. It will only be appropriate to do that in exceptional circumstances such as if it is alleged that the warning was issued in bad faith, there were, on the face of it, no grounds for it or if it was otherwise “manifestly inappropriate.” Applying this to Mr Bandara’s case the Tribunal was entitled to find that the final written warning crossed the line and was “manifestly inappropriate”. The EAT went on to find that the Tribunal was however wrong to then go on to find the dismissal to be fair because it had not considered the correct question which was to what extent the BBC took account of the flawed final written warning.

Comment

The Tribunal decision in Bandara was somewhat bizarre in that the Tribunal found the final written warning to be manifestly inappropriate but the subsequent dismissal which took account of this to be fair. It asked itself the wrong question about whether a reasonable employer would have dismissed if the warning had only been an ordinary one rather than considering the actual situation of whether the employer acted as a reasonable one would have in dismissing for misconduct having regard to a fundamentally flawed live final written warning.

When considering whether to dismiss where a prior final warning is live employers should, particularly if prompted by the employee, consider whether there are any fundamental questions about the legitimacy of the live warning. This is however a high threshold and if there was any proper basis for issuing the final written warning it should not be opened up again and the reasonable employer will be entitled to have full regard to it in a subsequent disciplinary process. If the employer is considering a clear instance of gross misconduct then it may be advisable to make it clear that the gross misconduct is the sole reason for the dismissal thus avoiding the legitimacy of the final written warning becoming relevant.

Eric Gilligan, Partner

Chambers UK 2018

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