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In cases of misconduct, other than gross misconduct, the disciplinary sanction imposed often depends on what, if any, prior warnings have been given. If an employee is subject to a live final written warning and the employee commits another act of misconduct, then the employer will usually rely on that final written warning and take the decision to dismiss.
It is also normally the case that earlier decisions by an employer should be regarded by the Employment Tribunal as established background and should not be re-opened, but that will not always be the case.
In Bandara v British Broadcasting Corporation, Mr. Bandara had worked at the BBC for 18 years with an unblemished record. In August 2013 he was subjected to disciplinary proceedings in respect of two incidents that had taken place earlier that year. In the first incident in 2013, he shouted at a senior manager, he apologised, and no further action was taken at the time. The second incident involved his decision to prioritise a report on one matter over another. Notwithstanding no action had been taken at the time for the first incident, the decision maker concluded that both matters potentially constituted gross misconduct and that a final written warning would be imposed
Shortly afterwards, following allegations of bullying, intimidation and failure to follow management instructions, further disciplinary action was taken and, in reliance on the final written warning, Mr Bandara was dismissed.
The Employment Appeal Tribunal found that the final written warning was ‘manifestly inappropriate’ and, as such, the BBC was not entitled to rely on the final written warning when deciding to dismiss Mr Bandara. The case was sent back to the Employment Tribunal for consideration as to whether he would still have been dismissed but for the final written warning.
This should be a note of caution for employers who are seeking to dismiss an employee on the basis that further misconduct has taken place after a final written warning has been issued. If significant weight has been attached to the final written warning and its content was so ‘manifestly inappropriate’, the subsequent dismissal is likely to be unfair. This is not to say that the warning could not instead be used as background or merely as an indication of employee standards. It is the extent to which the final written warning has been relied upon that needs to be determined.
If the allegations potentially constitute gross misconduct, it would be better to summarily dismiss on the grounds of gross misconduct and then argue that, even if not gross misconduct, the employee would have been dismissed anyway because of the final written warning.