Bandara v British Broadcasting Corporation – “manifestly inappropriate” final written warning could not be relied upon to dismiss employee

In Bandara v British Broadcasting Corporation UKEAT/2016/0335/15/JOJ the Employment Appeal Tribunal upheld the decision of an Employment Tribunal that an employer could not rely on a final written warning that was “manifestly inappopriate” and, further, went on to hold that the Tribunal had been wrong to conclude that the dismissal was fair (as it had asked itself the wrong hypothetical question regarding fairness).

Mr Bandara commenced employment with the British Broadcasting Corporation (“BBC”) on 20 July 1995 and, prior to his dismissal, was working within the Sinhala Service as a Senior Producer. Mr Bandara had an unblemished service record for the first 18 years of his employment with the BBC but in August 2013 was subject to disciplinary proceedings for two incidents that had occurred earlier that year: 1) that he had ignored a reasonable management request and used abusive languaage (where he had shouted at a senior manager but apologised the next day for doing so); and 2) that he had prioritised coverage of the 30th anniversary of Black July (a sombre date in Sri Lankan history) over the birth of Prince George the day before. Mr Bandara was given a final written warning in respect of these allegations on 19 November 2013, with this final written warning to remain live for one year.

Shortly after the outcome of Mr Bandara’s disciplinary process new disciplinary proceedings were commenced against him which culminated in further disciplinary charges(of various allegations of bullying and intimidation, being abusive to colleagues, and refusing to obey reasonable management instructions). Mr Gomis, the manager handling these disciplinary proceedings, found all of the allegations against Mr Bandara to be proved or partially proved, and detailed in a letter dated 15 August 2014 that Mr Bandara should be summarily dismissed.

Mr Bandara brought claims against the BBC for unfair dismissal and direct race discrimination in the Employment Tribunal. The Employment 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”.

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 found that the Tribunal had asked itself whether there would have been a fair dismissal if an ordinary warning had been given to Mr Bandara whereas the EAT found that the correct test should have been whether the BBC would have dismissed if no previous warning had been given to Mr Bandara.

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,

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case turned to a great extent on whether the warning given in November 2013 was a ‘manifestly inappropriate’ warning i.e. it was issued in bad faith or there was an oblique motive for it. If an employee is seeking to argue that a warning was manifestly inappropriate then they will normally have to have challenged that warning (by appealing it or otherwise).”