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Dismissal following unsafe FWW- fruit of the poisoned tree?

BY Donald MacKinnon
Employment Law & HR
BG Purple

The Employment Appeal Tribunal (EAT) recently considered whether an employer could fairly rely on a previous final written warning that was “manifestly inappropriate” to dismiss an employee. The case serves as a warning to employers that, if there is any doubt about the appropriateness of an earlier sanction, a decision to dismiss should be given careful consideration.

Mr Bandara worked for the BBC for 18 years. In 2013 he was disciplined for two misconduct incidents and given a final written warning. He was dismissed in 2014 after further misconduct incidents and pursued claims of race discrimination and unfair dismissal. The employment tribunal (ET) found that the final written warning was “manifestly inappropriate”, relying heavily on the examples of misconduct in the BBC’s disciplinary code and noting that what Mr Bandara had done did not fit the BBC’s own definition of gross misconduct. However, it ultimately found that the dismissal was fair.

At appeal, the EAT held that it was acceptable for the ET to find that the final written warning was an inappropriate sanction for the earlier disciplinary offences. While past decisions should not be reopened as a matter of course, it is open to an ET to consider whether an earlier disciplinary sanction was unsound. If so, it should consider whether its influence on the decision to dismiss also renders the dismissal unfair as a consequence.  

However, after finding that the final warning was manifestly unfair the ET considered whether the employer would have been in a position to dismiss if a written warning had been issued instead. The EAT held that the ET should not have created a hypothetical warning situation, but instead considered the weight the employer should have given to the warning actually given. The case has been remitted the case back to the original ET to apply the correct test.

For employers this case highlights the importance of ensuring that disciplinary policies are regularly reviewed and accurately reflect real-life acceptable standards. Employers should consider building flexibility into their disciplinary policy to allow for a greater degree of discretion depending on the seriousness of the conduct. It is clear that, if there is any doubt about the appropriateness of an earlier sanction, an employer should proceed with caution. If dismissal is nevertheless considered to be the appropriate sanction, the decision needs to be carefully recorded to ensure that this point is clear. 

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