Issuing Disciplinary Decisions - Why You Need to Ensure You Have a Solid Policy in Place
In the recent case of Bandara v British Broadcasting Corporation the Employment Appeal Tribunal held that a final written warning given to an employee was "manifestly inappropriate".
Therefore the employer was not entitled to rely upon it when considering whether to dismiss the employee for further misconduct.
The Facts
Mr Bandara was a Senior Producer within the BBC’s Sinhalese Service. Until 2013, he had maintained an unblemished disciplinary record for almost 18 years.
In August 2013, Mr Bandara was subjected to disciplinary proceedings on two separate grounds. The first was for abusive behaviour and refusal to follow a reasonable management request relating to an incident in March 2013 when he had shouted at a senior manager. He had apologised to the senior manager by email the following day and no further action was taken. The second ground was for breach of editorial guidelines in July 2013 when Mr Bandara decided to prioritise coverage of the 30th anniversary of Black July - a sombre date in Sri Lankan history - over the birth of Prince George.
The decision maker in the disciplinary proceedings considered that both incidents potentially constituted gross misconduct and Mr Bandara was issued with a final written warning.
In May 2014, further disciplinary proceedings were brought against Mr Bandara concerning allegations of bullying and intimidating behaviour and refusing to obey management instructions and he was summarily dismissed. Mr Bandara subsequently brought claims of unlawful discrimination and unfair dismissal.
Employment Tribunal
Mr Bandara's claims for unlawful discrimination and unfair dismissal were dismissed by the Employment Tribunal (ET). However, the ET did find that the final written warning he had received was manifestly inappropriate for the conduct with which he was charged. Notwithstanding this, the ET held that the dismissal was fair.
Mr Bandara appealed against the ET's finding that his dismissal was fair and the BBC cross-appealed against the finding relating to the appropriateness of the final written warning.
Employment Appeal Tribunal (EAT)
The EAT upheld the ET's finding that the final written warning was manifestly inappropriate. The judge agreed that Mr Bandara's conduct in the two incidents did not amount to gross misconduct, either by reference to the BBC's disciplinary policy or by generally accepted standards.
However, the EAT found that the ET had erred in concluding that Mr Bandara's dismissal was fair. The ET had wrongly considered the hypothetical question of whether the dismissal would have been fair if Mr Bandara had been subject to an ordinary written warning, rather than a final written warning. The correct approach would have been for the ET to examine the BBC's reasoning in making its decision to dismiss, including the extent to which the final written warning was relied upon, and whether dismissal in these circumstances fell within the range of reasonable responses.
The case was remitted to the ET for determination of this point.
Best Practice
This case is a useful reminder for employers to ensure that they have a robust disciplinary policy in place. This policy should give clear examples of what the employer considers as misconduct and gross misconduct, taking into account generally accepted standards. Employers should ensure that disciplinary decisions accord with their policies, to ensure that they can be relied upon in subsequent disciplinary proceedings should the need arise.