A recent Employment Appeal Tribunal (EAT) decision has reinforced the importance of issuing employee warnings appropriately. If an employee is dismissed for misconduct following an earlier warning, a tribunal will examine how much weight has been placed on the previous warning. This will determine whether the dismissal has been fair or ‘within the band of reasonable responses’.
What does this mean for employers?
It’s therefore essential that employers are aware of Tribunals reviewing previous warnings if it’s indicated they may have been inappropriate or not given in good faith. This applies whether or not the employee appeals against the warning at the time.
How should employers issue warnings appropriately?
Company’s need to ensure that any warnings used or referred to in reaching a decision to dismiss an employee are justified. It is important for employers to be able to demonstrate that, at the time of issuing a warning, a fair disciplinary procedure has been adhered to. If a Tribunal finds that this hasn’t been the case, then it’s likely to affect their decision on whether or not a dismissal was fair.
Bandara v British Broadcasting Corporation
The importance of this concept has been highlighted in a recent case, Bandara v British Broadcasting Corporation EAT/0335/15. The first incident leading up to Mr Bandara’s dismissal occurred in March 2013, followed by a second incident in July 2013. In the second incident Mr Bandara refused to lead on a story related to the birth of Prince George. He was subsequently issued with a final written warning prior to new allegations being raised resulting in dismissal for gross misconduct. Mr Bandara then submitted a claim for unfair dismissal.
Whilst the Tribunal held that the dismissal was fair, this was appealed by Mr Bandara and the EAT held that the dismissal was unfair on the basis that the previous warning was not issued in good faith.
This case highlights that, whilst employers need not reopen cases when conducting disciplinary hearings, they may be required to consider the previous warnings before proceeding with a dismissal. If the employee alleges that a previous warning was given in bad faith, the final decision, if it takes into account a live warning that may be considered to be manifestly inappropriate, may result in a tribunal finding any dismissal to be unfair.
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