Bandara v British Broadcasting Corporation

Where dismissal for misconduct follows a final written warning, the Employment Tribunal must apply the objective test in section 98(4) of the Employment Rights Act 1996. It must assess the employer’s actual reasons for dismissal, including the weight placed on the warning.

A prior warning is ordinarily established background. It may be impugned only exceptionally, including where it was issued in bad faith, lacked prima facie grounds, or was manifestly inappropriate. A warning is manifestly inappropriate where its imposition plainly ought not to have occurred. If such a warning materially influenced dismissal, the Tribunal must assess that influence. It must not replace the actual warning with a hypothetical lesser warning and decide whether dismissal would then have been reasonable.

The claimant, a senior producer with a long unblemished record, received a final written warning following two disciplinary incidents. He was later summarily dismissed after further allegations of misconduct were upheld. The dismissing manager referred to the live final written warning and treated it as relevant to sanction.

The Employment Tribunal rejected claims of discrimination and unfair dismissal. It held that the final written warning was manifestly inappropriate, but nevertheless found the dismissal fair by asking whether dismissal would have been reasonable if the claimant had instead received an ordinary written warning.

The employer cross-appealed the finding concerning the warning. The claimant appealed the finding that dismissal was fair. The central issue was whether the Tribunal had correctly applied the statutory reasonableness test after finding the warning manifestly inappropriate.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal was entitled to find that the final written warning was manifestly inappropriate. The earlier conduct plainly did not amount to gross misconduct under the employer’s procedure or by generally accepted standards. The Tribunal did not substitute its own view for that of the employer.

2. Under section 98(4) of the Employment Rights Act 1996, the Tribunal must begin with the employer’s actual reason for dismissal. It must assess objectively whether the employer acted reasonably in treating that reason, including a prior warning where relevant, as sufficient to dismiss. The range of reasonable responses is relevant but does not permit the Tribunal to reopen earlier disciplinary action merely because it would have reached a different result.

3. An earlier warning should generally be treated as established background. Reconsideration is exceptional. It may be justified where bad faith has real substance, where there were no prima facie grounds, or where the warning was manifestly inappropriate. The latter condition requires something which, once identified, shows that the sanction plainly ought not to have been imposed.

4. Having found the warning manifestly inappropriate, the Tribunal erred in asking whether dismissal would have been fair on the hypothesis that an ordinary written warning had been issued. Its task was to examine the dismissing manager’s actual reasoning and determine the significance attached to the actual warning. A dismissal may still be fair if the warning was no more than background and dismissal was in reality for the new misconduct. It will be difficult to regard dismissal as reasonable where significant weight was placed on an invalid final warning.

5. The extent to which the dismissing manager relied on the warning required factual assessment. The unfair-dismissal issue was remitted to the same Tribunal. If necessary, it was also to determine Polkey and contributory-conduct questions by reference to actual past facts, applying an assessment of prospects rather than a balance-of-probabilities conclusion.

• Employment Appeal Tribunal: The claimant’s appeal against the finding that dismissal was fair was allowed. The respondent’s cross-appeal against the finding that the final written warning was manifestly inappropriate was dismissed. The unfair-dismissal issue was remitted to the same Employment Tribunal.
• Employment Tribunal, Watford: By a judgment dated 30 July 2015, the Tribunal rejected claims of unlawful discrimination and unfair dismissal. It held that the final written warning was manifestly inappropriate but that dismissal was fair.