Final Written Warning

A well drafted disciplinary policy will often say that previous disciplinary sanctions can be taken into account when considering further disciplinary outcomes. But are there any caveats to this? The case of Bandara –v- BBC UKEAT/0335/15/JOJ explores this question.

Background

Mr Bandara was employed by the BBC as a Senior Producer in the Sinhala Service and, for almost 18 years, had an unblemished disciplinary record. In March 2013, he had an argument with a Senior Manager which resulted in him raising his voice and shouting at the Senior Manager. The following day, Mr Bandara sent an e-mail apologising for his behaviour and no action was taken.

On 23 July 2013, the day following the birth of Prince George, Mr Bandara chose not to prioritise the story of the Prince’s birth when the service started broadcasting at 10am. This was because it was the 30th anniversary of Black July, a sombre day in Sri Lankan history. During the course of the morning, Mr Bandara changed his mind and the story was aired just after 12pm.

In August 2013, the BBC decided to discipline Mr Bandara in relation to both incidents. He was accused of using abusive language, failing to follow a reasonable request and breaching editorial guidelines. By letter dated 19 November 2013, he was informed that the allegations had been upheld and he was being issued with a final written warning that would remain on his personnel file for 12 months. A further investigation ensued culminating in additional disciplinary charges and, by letter dated 14 August 2014, Mr Bandara was informed that he was being summarily dismissed. In reaching this conclusion, the decision maker took into account the final written warning.

What did the Tribunal Decide?

The Tribunal was asked to decide whether Mr Bandara had been unfairly dismissed and discriminated against. It heard evidence relating to the giving of the final written warning and concluded that it was “manifestly inappropriate”. In the Tribunal’s view, a written warning would have been a more reasonable outcome. However, in spite of this finding, it dismissed Mr Bandara’s claims and he appealed.

The Employment Appeal Tribunal concluded that the Tribunal had been entitled to find that the final written warning was “manifestly inappropriate” and gave guidance on when tribunals should investigate previous warnings. It also found that the Tribunal had misdirected itself on the question or whether or not the dismissal had been unfair and remitted the claim back to the same Tribunal for further deliberations.

What does this mean for employers?

This case is a good reminder of the need to carry out a proper disciplinary procedure when considering any kind of disciplinary sanction, not just dismissal. Employers can still take account of previous written warnings when deciding subsequent sanctions as long as they have conducted a fair and reasonable investigation into the allegations, and have determined the outcome in good faith. If they do not, they run the risk of a tribunal finding that the dismissal is unfair.

If you have any questions please contact Debbie Sadler at d.sadler@hewetts.co.uk or on 0118 955 9607.

Published on 16/12/2016