What problems might an employer face if relying on a final written warning when considering dismissal?

In the case of Bandara v British Broadcasting Corporation, Mr Bandara was employed by the BBC Sri Lankan service. He had accrued 18 years’ service with an unblemished disciplinary record. He received a final written warning for shouting at his manager (for which he had apologised) and failing to prioritise the birth of Prince George in news coverage (instead choosing to cover the anniversary of a significant event in Sri Lankan history). There was a significant lapse of time between these incidents (March and June 2013 respectively) and the issue of the final written warning in November 2013. Mr Bandara was later dismissed in August 2014 for bullying behaviour and failure to follow management instructions.

The employment tribunal held that the final warning was “manifestly inappropriate” as neither of the two incidents constituted serious misconduct and Mr Bandara’s length of service and clear conduct record had not been taken into account. Nevertheless, it held that the dismissal was fair. The employment tribunal decided that, had Mr Bandara been issued with an ordinary written warning (rather than a final written warning), it would have been fair to dismiss him.

The EAT disagreed with this approach. Like the employment tribunal, it held that the final written warning was “manifestly inappropriate” and should not have been relied upon by the employer. However, the tribunal should not have considered hypothetical circumstances. It should only have looked at what actually happened and considered the reasonableness of the employer’s actions.

When considering the sanction of dismissal where there is a live final written warning on an employee’s record, an employer should consider whether there is anything ‘manifestly inappropriate’ about the final written warning before relying on it. However, this will only be the case in exceptional circumstances and an employer will not, as a matter of course, be required to ‘go behind’ a final written warning on an employee’s record.

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