Unfair Dismissal & Previous Warnings?
A question that often arises from employers who are dealing with employee misconduct cases is “can I rely on a previous warning to justify dismissal for a new conduct issue?” In a recent case decided by the Employment Appeal Tribunal the reasonableness of a decision to dismiss an employee following previous warnings was considered.
Section 98(4) of the Employment Rights Act 1996 is the applicable legal provision regarding the test of fairness of a dismissal and states:
‘the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)shall be determined in accordance with equity and the substantial merits of the case.’
In deciding if a dismissal is fair or not an Employment Tribunal will start with the reason for the dismissal and ask if the employer acted reasonably in treating it as a sufficient reason for dismissal.
In a conduct case the Employment Tribunal will examine:
1. The investigation
2. The disciplinary process
3. The factual findings
4. The sanction
If the Employer took into account a final written warning when deciding on the sanction the Employment Tribunal will look at the warning and warning process as well.
Previous case law states that, when considering previous warnings, the Employment Tribunal must look at whether the prior final warning was;
• Issued in good faith
• There were prima facie grounds for imposing the warning
• Not manifestly inappropriate
Mr Chandana Bandara was employed by the BBC as a Senior Producer and had been employed since 1995 and until 2013 he had no disciplinary issues or warnings.
In March 2013 Mr Bandara got into an argument with a Senior Manager, Ms Swe, about some training he had been asked to book. During the argument he shouted at Ms Swe, and although the incident was reported to HR no action was taken, however Mr Bandara did apologise by email.
In July 2013 Mr Bandara had a disagreement with another manager Mr Radojavic about the prioritisation of the story regarding Prince George’s birth. Although Mr Bandara had initially said he would not prioritise the story he changed his mind and the story did go out, however it was two hours later.
In August 2013 the BBC started disciplinary proceedings against Mr Bandara because of the two incidents in July and March. The allegations were that he had used abusive behaviour, refused a reasonable request and breached editorial guidelines.
The allegations were upheld and Mr Bandara was given a final written warning on the 19th November 2013 for his conduct and informed that the warning would remain live for 12 months.
After this the BBC apparently started an investigation into Mr Bandara’s behaviour and a disciplinary was arranged for the 14th May 2014.
The allegations and conclusions were:
• applying pressure on Mr Liyanage in November 2013 to require Mr Radojavic to leave a team meeting, partially proved;
• applying pressure in November 2013 to Mr Liyanage by attempting to get him to drop existing disciplinary proceeding, partially proved;
• in respect of two incidents in November 2013, behaving in a bullying and intimidating manner;
• being involved in creating and perpetuating a “culture of fear” within the Sinhala Service;
• on a number of occasions describing Mr Radojavic in a discriminatory way, calling him “sudda” in a derogatory manner;
• refusing to obey an instruction from Mr Radojavic in January 2014; and
• shouting angrily to colleagues on two occasions, one in January and one in February 2014.
(taken directly from the Judgement).
Mr Bandara was dismissed by letter on the 15th August 2014 for these allegations and the letter stated that the disciplinary decision maker, Mr Gonis, had taken into consideration that he still had a live final written warning.
Mr Bandara made a claim for unfair dismissal and discrimination in the Employment Tribunal.
In his evidence to the Employment Tribunal Mr Gonis has referred several times to the fact that he had taken into consideration Mr Bandara’s final written warning and that several of the new allegations had occurred after the final written warning was issued, therefore the Employment Tribunal explored the procedure followed with the final written warning and the fairness of the sanction given.
The Employment Tribunal concluded that the whilst a warning for the first set of allegations would have been appropriate a final written warning was “manifestly inappropriate”. They considered that what Mr Bandara had done “did not fit the definition of gross misconduct; he had 18 years unblemished service; he had sent an immediate apology to Ms Swe. Bearing in mind the ACAS code and the effect of the delay, in respect of the royal baby story we are confident of our conclusion here.”
The Employment Tribunal found that Mr Gonis had reasonable grounds for believing that Mr Bandara had committed the acts complained of and a fair process was followed and stated;
“We consider that if, properly, the claimant had been given only a written warning the first time round, it would still have been live and still something properly to be taken into account when Mr Gonis considered matters. In those circumstances the fact that it was a written warning rather than a final written warning would not have rendered the decision to dismiss improper or unreasonable or excessive and beyond the range. So our conclusion is that the decision to dismiss was one which a reasonable employer could reach in all the circumstances.”
Mr Bandara appealed against the Employment Tribunal’s decision and the BBC cross appealed against the finding of the Employment Tribunal that the final written warning was “manifestly inappropriate”.
The Employment Appeal Tribunal decided that the Employment Tribunal had been correct to find that the final written warning was “manifestly inappropriate” and to conclude that the earlier final written warning was not appropriate.
Then turning to the question of the reasonableness of Mr Bandara’s dismissal the Employment Appeal Tribunal concluded that much will depend on the weight applied by the Employer to the manifestly inappropriate warning. In a case where the employer places significant emphasis on the previous final written warning, which was given unreasonably, it is difficult to see how the employer’s subsequent decision to dismiss could have been reasonable. As a result, the Employment Appeal Tribunal concluded that the Employment Tribunal had not approached the issue of fairness of dismissal in the correct manner and the case was returned to the Employment Tribunal for a second hearing.
Points to Note
The Employment Appeal Tribunal concluded in this case that generally speaking earlier decisions of an employer should not be reopened unless it was unreasonable and manifestly inappropriate. This means that the Employment Tribunal should not re-examine every previous warning which is then relied on for a dismissal decision, however if the sanction previously imposed was manifestly inappropriate and it is obvious once reviewed that it should not have been applied the Employment Tribunal will consider the circumstances of the previous warning.
If you are issuing warnings to employees and you intend to rely on them at a later date if there is further misconduct it is important that you approach the process and decision making in the same way as if it were potentially gross misconduct.
Action to Take
1. Ensure that anyone undertaking disciplinary procedures in your business is trained to do so and understands the potential later implications if they get the decision wrong;
2. If dismissing an employee for misconduct and there are earlier warnings, ensure that you are satisfied that the previous warnings given were appropriate;
3. Having a clear written disciplinary policy will help to get the process right;
4. If you have a difficult or borderline situation then seek some advice, I am happy to chat through your scenario and can be contacted by email firstname.lastname@example.org or 01983 897003 or 023 8098 2006.
Mr Bandara v BBC – Employment Appeal Tribunal
You can read the full judgement here