The Employment Appeal Tribunal (EAT) decision in Bandara v British Broadcasting Corporation provides a reminder of the need to be careful when considering prior warnings in the context of deciding to dismiss someone.
Mr Bandara worked as a senior producer for the BBC, having commenced employment as a producer in July 1995. He worked within the Sinhala Service. His employment record in the period to 2013 was unremarkable. In March 2013 he was asked to book his team on a training course. He argued that this was the responsibility of another employee and he shouted at that employee. The other employee reported the matter to HR but there is no record of any action having been taken.
Mr Bandara was working on 23 July 2013, the day after Prince George was born. He decided not to prioritise the story because it coincided with the 30th anniversary of Black July, a sombre date in Sri Lankan history. The Service opened accordingly at 10.00 a.m. However, another employee disagreed with Mr Bandara’s approach and at 12.08 p.m. the news about Prince George’s birth was broadcast.
In August 2013 Mr Bandara was made the subject of disciplinary proceedings in respect of both incidents. By letter dated 19 November he was notified of the employer’s decision by investigator, Ms Iootty:
After carefully considering the allegations and your response to them, I have concluded that I believe that the allegations are true. This is an extremely serious matter as your behaviour in relation to both the incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC.
He was issued with a final written warning.
Further disciplinary proceedings followed in 2014 and resulted in Mr Bandara’s summary dismissal. Charges included: applying pressure on an employee to require another employee to leave a meeting; applying pressure on an employee to drop disciplinary proceedings; behaving in a bullying and intimidating manner; being involved in creating an perpetuating a culture of fear within the Sinhala Service; describing another employee in a discriminatory way by calling him a “sudda”; refusing to obey an instruction and shouting angrily to colleagues on two occasions.
The matter proceeded to an employment tribunal and in July 2015 it was found that the final written warning that had been issued was manifestly inappropriate. However, the tribunal concluded that the decision to dismiss was nonetheless fair. Mr Bandara appealed and the BBC cross-appealed on the finding that the final warning was “manifestly inappropriate”.
Based on the facts as outlined above the EAT unsurprisingly agreed with the tribunal’s decision that the final written warning was manifestly inappropriate and dismissed the BBC’s cross-appeal. However it disagreed with the tribunal’s approach to the written warning. The tribunal had considered whether it would have been reasonable to dismiss if the prior warning had been an ordinary (rather than a final) written warning. Instead, it should have focused on the actual reasoning of the employer and asked whether, applying the objective standard of the reasonable employer, it acted reasonably in dismissing the employee. This would necessarily depend on how it took account of the final written warning. It was no part of the tribunal’s function to reopen the final written warning. Therefore, once it was deemed manifestly inappropriate, it had to be disregarded. Whether or not the employer attached weight to it when making the decision to dismiss would there be directly relevant to the question of whether or not the dismissal was fair. the employer did so in this case and it followed that the decision to dismiss was not reasonable. The appeal was therefore upheld and the matter remitted to the tribunal for further consideration, taking into account the defect in its approach identified by the EAT.
The case is a reminder that even where relevant facts may support a decision to dismiss, prior errors, such as the inappropriate prior warning may render a fair dismissal unfair. Had the employer made clear that the prior warning did not play any material part in the decision to dismiss the outcome might well have been different. However, that was hardly likely sine the BBC, as evidenced by its cross-appeal, clearly maintained the view that the final warning was appropriate.