In the recent case of Bandara v British Broadcasting Corporation (2016) the Employment Appeal Tribunal (EAT) considered an employment tribunal’s approach to the reasonableness test in a conduct dismissal. Furthermore, there was an active final written warning which the employment tribunal found to have been “manifestly inappropriate”.
This case showcases when cultures can collide in the employment context and how, as well as how not, to deal with such issues.
For an employer to dismiss an employee fairly, they must rely on one of five potentially fair reasons and follow a fair process. A Tribunal must consider if the employer acted reasonably in dismissing the employee for that reason. The Employment Rights Act 1996 explains that this depends on the circumstances of the individual case as well as the substantial merits of the case.
Mr Bandara had been employed by the BBC for 18 years, most recently as a Senior Producer within the Sinhala Service, and had a clean disciplinary record. Mr Bandara was asked to publish an article on the birth of Prince George in July 2013. However, this coincided with the 30th anniversary of Black July, a significant date in Sri Lankan history. Accordingly, Mr Bandara decided to prioritise the Black July article over the birth of Prince George.
Mr Bandara faced disciplinary action and was charged with refusing to follow a reasonable management request and breach of editorial guidelines, even though he did subsequently publish an article on Prince George. The BBC decided the appropriate sanction was a final written warning which would stay live for 12 months. Following this disciplinary action, the BBC summarily dismissed Mr Bandara as a result of further investigations which they felt warranted a summary dismissal. This related to allegations of bullying and intimidation, abusive behaviour towards colleagues and refusing to obey management instructions. Mr Bandara bought a claim for unfair dismissal, race discrimination and discrimination on the grounds of religion or belief.
The Employment Tribunal considered that the BBC had taken the final written warning into account when deciding to dismiss Mr Bandara for gross misconduct. The Tribunal also concluded that the final written warning was “manifestly inappropriate”, and simply because Mr Bandara had failed to prioritise an article on Prince George did not amount to gross misconduct.
The Tribunal dismissed Mr Bandara’s claims, holding that the final written warning given to him in November 2013 was “manifestly inappropriate” but nonetheless finding that his dismissal was fair. Mr Bandara appealed against the Employment Tribunal’s decision that his dismissal was fair and the BBC cross-appealed against the decision that the final written warning was “manifestly inappropriate” and argued that:
The Employment Appeal Tribunal upheld Mr Bandara’s appeal and dismissed the BBC’s cross-appeal. With regards to the cross-appeal, the Employment Appeal Tribunal held that it was not an error of law for the Tribunal to find that the final written warning was “manifestly inappropriate” as the conduct which formed the basis of the reason for the final written warning was not gross misconduct either under the BBC’s disciplinary policy or by generally accepted standards.
The Employment Appeal Tribunal went on to find that the Tribunal had established the wrong test to determine whether Mr Bandara’s dismissal was unfair – the EAT said that he Employment Tribunal’s task is not to put forward a hypothesis of its own but to examine the reasoning of the employer and see whether, given the employer’s reasoning, the decision to dismiss was or was not reasonable having regard to equity and the substantial merits of the case. The Tribunal should have examined whether the employer relied on the final written warning. The EAT stated that “Much will depend, therefore, on whether the employer attached significant weight to the manifestly inappropriate final warning.”
The EAT was unable to establish for itself whether Mr Bandara’s dismissal was fair or not and remitted the case to the Employment Tribunal to consider whether Mr Bandara’s dismissal would have been fair if he had not been given a warning in November 2013.
This case emphasises the importance for employers of considering carefully disciplinary sanctions. Much consideration must be given to any warning, and not just a decision to dismiss and employee. This is particularly the case when an employer relies upon previous warnings to dismiss. Employers should consider how appropriate previous warnings are and if it should rely on it.
A tribunal is more likely to find that a decision to dismiss was in the band of reasonable responses where an employer considers the employee’s length of service (18 years in Mr Bandara’s case) and previous disciplinary record alongside other factors.
If an employee commits an act of gross misconduct, in light of this case, it would be sensible for employers to make clear that the reason for a dismissal is the act of gross misconduct alone and not based upon previous warnings. This would avoid the appropriateness of previous warnings being challenged.
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