The answer to this may appear to be obvious, but the EAT was recently asked to confirm this position in Bandara v BBC.

The EAT heard that Mr Bandara had an unblemished disciplinary record spanning 18 years until problems arose in 2013. Mr Bandara was then subject to two sets of disciplinary proceedings. The first was for shouting at a senior manager and the second was for his decision to prioritise coverage of the 30th anniversary of Black July over the birth of Prince George.

The disciplinary decision maker decided that both instances potentially constituted gross misconduct and Mr Bandara was issued with a final written warning.

Mr Bandara was then subject to disciplinary investigation for numerous allegations of intimidation, bullying, abusiveness and refusing to obey management orders. The investigating officer found most of these allegations to be factual and made the decision to summarily dismiss Mr Bandara.

Mr Bandara challenged this decision in the ET alleging race discrimination and unfair dismissal. His claims were dismissed. However the ET found that Mr Bandara’s earlier final written warning was manifestly inappropriate.

Mr Bandara appealed the ET’s decision regarding his unfair dismissal claim. The BBC cross appealed the decision that the final written warning was manifestly inappropriate.

The EAT upheld the ET’s decision regarding the appropriateness of the final written warning as it was clear that neither of Mr Bandara’s actions would amount to gross misconduct either by reference to the BBC’s policies or generally accepted standards.

The EAT however held that the ET had erred in concluding that Mr Bandara’s dismissal was fair. The EAT stated that correct process if an employee has been dismissed on the grounds of a final written warning which has been found to be manifestly inappropriate, is to examine the employer’s reasoning for the dismissal. If it was found that the employer attached significant weight to the warning, rather than simply using it as an indication of the standard of behaviour to be expected, then it is difficult to see how the decision to dismiss could be a fair one.

The EAT held that the ET was wrong to consider whether the dismissal would have been fair had Mr Bandara been subject to an ordinary written warning. The case was therefore remitted to the ET for further determination on the fairness of dismissal after considering the weight the BBC applied to the manifestly inappropriate final written warning.

The EAT’s decision is clear, employers may expose themselves to claims for unfair dismissal if they are found to rely too heavily on a final written warning when making the decision to dismiss, if it could be found that such a final written warning may be held to be manifestly inappropriate.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Joan Pettingill.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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