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Is a dismissal unfair when a prior written warning is inappropriate?

In the case of Bandara v BBC (UKEAT/0335/15/JOJ), the employee received a final written warning for two acts which the employer considered could amount to gross misconduct. Following the final written warning the employee was later dismissed for other actions which the employer considered to also amount to gross misconduct. The employee brought a claim against the employer for unfair dismissal.

The employment tribunal found that the final written warning given initially was ‘manifestly inappropriate.’ In deciding whether or not the dismissal was unfair, the employment tribunal therefore based their decision upon whether or not the decision to dismiss would still have been fair even if only a written warning instead of a final written warning had been imposed previously. They concluded that the decision to dismiss would still have been fair. The employee appealed to the Employment Appeal Tribunal (“EAT”).

The EAT held that the Employment Tribunal were not wrong to hold that the final written warning was manifestly inappropriate. Nevertheless the Employment Tribunal should not have based their decision on the hypothetical question of whether or not the decision to dismiss would still have been fair even if only a written warning had been given. They instead should have considered whether or not the decision was fair on the basis of how much emphasis was placed on the inappropriate final written warning. Though the EAT sent the case back to the Employment Tribunal for reconsideration, they indicated that if the employer had placed a lot of emphasis on the final written warning as opposed to the subsequent acts of misconduct, the decision to dismiss could be unfair.

Following this case, in deciding whether to dismiss an employee, employers should therefore be careful when taking previous written warning into account. It would be prudent to consider whether previous written warnings were truly deserved, and if they were not then weight should not be attached to them when coming to a decision. 

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