Final Warnings and Unfair Dismissal

Final Warnings and Unfair Dismissal

In the case of Bandara v BBC (2016) the Appeal Tribunal has examined how to determine if a dismissal was fair when there was an inappropriate final warning on the employee’s record.

It is important to put the facts of this judgment into context. The employee had an unblemished record for nearly 18 years. Then, with a change in management, he committed two offences, three and a half months apart (March and July), that resulted in a disciplinary hearing and a final warning issued eventually in November.

The two offences which resulted in the final warning were firstly arguing with a colleague and secondly not prioritising properly.

In the following May, the employee was charged again with creating a culture of fear, and was later dismissed. It is quite clear from the letters and deliberations that the final warning was taken into account when concluding to dismiss.

The tribunal hearing the case for unfair dismissal decided that the original final warning was not appropriate. It reasoned that dismissal relying on that warning to tip the case over the threshold must therefore have been unfair. It ruled that if the warning had been a normal warning (not a final warning) then dismissal would not have resulted.

The BBC appealed.

In its judgment, the Appeal Tribunal concluded that, the original tribunal was quite right to say that the original final warning was not appropriate. However, it was wrong for the tribunal to guess at what might have happened if it had been a different warning.

What the tribunal should do in a case of unfair dismissal where there is an inappropriate final warning, is look at the extent to which the employer relied on the inappropriate warning and then determine the case according to the usual standards of fairness.

What this means for employers is that, if dismissing an employee with a final warning, some thought needs to be given to the fairness of the previous warning. If there is any doubt about it, limit the extent to which it is considered in concluding that dismissal is appropriate. Otherwise the final warning, could make the dismissal unfair.

The full judgment can be read at:

http://www.bailii.org/uk/cases/UKEAT/2016/0335_15_0906.html

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