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When it will not be appropriate to rely upon a final written warning to justify dismissal

The EAT has upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss an employee for further misconduct because the decision to issue the existing warning was ‘manifestly inappropriate’.

Until 2013, the employee had an unblemished disciplinary record going back almost 18 years. Then in August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year.

The first for shouting at a senior manager and refusing to follow a reasonable management request, back in March, for which he apologies the next day and no further action was taken. The second, for a breach of editorial guidelines. The disciplinary decision-maker considered that both incidents potentially constituted gross misconduct, and decided to impose a final written warning.

Shortly thereafter, he was subject to further disciplinary proceedings, which concerned various allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. The disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded on 15 August 2014 that he should be summarily dismissed.

The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.

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