Ensuring you have an appropriate final written warning

Ian Lewis

By Ian Lewis, senior consultant in company commercial law and employment law at Bray & Bray.

Taking disciplinary action against an employee is something that no employer wants to do. Difficult decisions are made every day by managers, but deciding whether behaviour by an employee warrants a formal warning is up there with the most difficult.

It is likely that if the final written warning is “manifestly inappropriate” that the employee would be able to claim unfair dismissal. However, a recent case in the news found that a final written warning from the BBC was inappropriate yet accounted for a fair dismissal. So, how can this be?

Background of the case

Mr Bandara had been a BBC employee for close to 20 years, with a clear disciplinary record. But in 2013, he was subject to two disciplinary hearings: the first for shouting at a senior manager and the second for a disagreement over what headline story to run.

The disciplinary decision maker at the BBC decided that both instances together constituted gross misconduct and warranted a final written warning, active for 12 months.

Shortly after the final warning, further disciplinary charges were held against Mr Bandara including bullying, abusiveness and refusing to obey management. The allegations were found to be factual and Mr Bandara was subsequently fired.

Unfair dismissal

Mr Bandara brought forward claims of unfair dismissal and discrimination. The claims were dismissed by the Employment Tribunal (ET) but they did find that the final written warning was inappropriate. Despite this, they considered whether it would have been fair to dismiss Mr Bandara if the final warning was instead an ordinary warning. They concluded that it indeed would have been, so that his dismissal was declared as fair.

The warning was deemed inappropriate as neither of Mr Bandara’s actions would amount to misconduct when referencing the BBC’s policies or generally accepted standards.

The tribunal decision in the Bandara case was somewhat unique in that the tribunal found the final written warning to be manifestly inappropriate, but the subsequent dismissal which took account of this to be fair.

Making appropriate warnings

Employers need to make sure that warnings are appropriate to the circumstances and not exaggerated, especially if the warning may later have to be relied upon. Failure to do so may expose employers to claims for unfair dismissal.

By relying too heavily on a final written warning when making the decision to dismiss an employee, the risks are higher as the final written warning may be found to be manifestly inappropriate. To lower the risk, alleged misconduct should be in line with the disciplinary policies at the company.

If you would like to discuss further the implications of any disciplinary process upon you or your business, then please do not hesitate to contact our employment team today on 0116 254 8871. Alternatively, you can email me with any questions that you may have, directly at idlewis@braybray.co.uk