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This article was published on January 17th, 2017
Bandara v British Broadcasting Corporation
Mr Bandara was a senior producer at the BBC. He was given a final written warning (which the tribunal later found to have been ‘manifestly inappropriate’). Further gross misconduct was later alleged and Mr Bandara was dismissed.
Unfair dismissal? No, the tribunal said. It would have been reasonable to dismiss Mr Bandara if the earlier warning had been just an ordinary written warning and not a final one.
But the tribunal didn’t take the right approach on that issue, said the Employment Appeal Tribunal. It ought to have focused on the way in which the dismissing officer took account of the earlier warning, and the reasonableness of his reasoning. Did the officer attach significant weight to the manifestly inappropriate final warning? If not (and if the employee was really dismissed because of the later allegations) then that might be fair. But if significant weight was attached to the final written warning (as in ‘he’s already subject to a warning, so subsequent significant misconduct should lead to dismissal’), then that is unlikely to be seen to be reasonable.
The tribunal will now look again at the case. For employers, the message is a clear one: if you are going to take account of an earlier warning, make sure that there were good, legitimate and justifiable grounds for issuing it in the first place. If you’re in any doubt about that, it’s best to avoid it having any bearing on a later disciplinary decision. Being clear about how you arrived at your decision – including what you did and didn’t take into account, and to what extent – is really important, so make sure to record that in writing.
As the EAT put it: “Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation.”
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