A warning about disciplinary warnings

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Posted in:Uncategorized|December 1, 2016 | Join the mailing list

Can an employer rely on a written warning that is ‘manifestly inappropriate’? No, says the Employment Appeal Tribunal.

According to the decision of the Employment Appeal Tribunal in the case of Bandara v British Broadcasting Corporation, a dismissal may be unfair if an employer relies on an earlier final written warning when deciding to dismiss an employee, where the earlier warning was “manifestly inappropriate”.

The case involved a senior producer at the BBC, who had received a final written warning in 2013 following allegations of misconduct being made against him, relating to two incidents. One incident involved him shouting at a senior manager. It had occurred months earlier, Mr Bandara had apologised the next day and no action was taken at the time. The second incident was an alleged breach of editorial guidelines. In 2013, the disciplining officer decided that both allegations were proven and could constitute gross misconduct. She gave Mr Bandara a final written warning, despite him having over 17 years’ service with an unblemished record.

In August 2014, Mr Bandara was summarily dismissed following another investigation into further allegations of bullying and intimidation and failure to follow management instructions. The dismissing officer made reference to the previous final written warning in the decision letter, and on numerous occasions in his witness evidence.

The initial Employment Tribunal found that the final written warning in 2013 was “manifestly inappropriate”. The EAT said that a tribunal should not normally “reopen” previous decisions by an employer, but should treat it as “established background”. However, the EAT also said a tribunal is entitled to find that a previous sanction should not have been imposed if there is something about its imposition that, once pointed out, shows it “plainly ought not to have been imposed” – which was the case here (the Tribunal found that the misconduct could not reasonably be considered gross misconduct).

Whether or not the dismissal was fair depends on whether the employer relied on that previous sanction in its decision to dismiss, and to what extent.

Clearly there are practical implications of this decision for employers because any dismissing officer will need to consider the appropriateness of a previous warning.

So, in light of the judgment what are the implications for employers and HR adviser’s?
• When considering past misconduct: Has the person received a written warning before?

• If no, the decision must be taken on the evidence in the present matter.

• If yes, was the previous warning “manifestly inappropriate”?

There is no need to re-hear the previous decision again, or for the new decision maker to decide what they would have done in that situation.

Rather, the new decision maker must decide whether they think that “no reasonable person would have imposed that sanction” when they look at what the allegations were and any mitigating factors.

It will be quite unusual for a warning to be “manifestly inappropriate”.

• If the warning was “manifestly inappropriate” it may be risky in light of this decision to have regard to it.
Although no reference is made in the EAT’s judgment to the employee appealing against the final written warning or the decision to dismiss, it should be possible for defective decisions to be rectified on appeal. So appeal officers should also be aware of these factors and consider them when making their decisions.

This is another case which illustrates the importance of being thorough and careful in all disciplinary processes. Managers should be careful when deciding whether or not allegations constitute gross misconduct and objective in deciding what the appropriate sanction should be.

To find out more about the issues raised in this post, get in touch with Michelle Gray or call +44 (0) 161 829 2599.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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