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How to dismiss an employee who has a prior written warning

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An employer should be wary of relying upon previous unfair disciplinary sanctions to justify a subsequent dismissal.

Mr Bandara worked for the BBC for 18 years, most recently for the Sinhala Service as a Senior Producer. He had an unblemished disciplinary record. In March 2013, he shouted at a colleague, and in July 2013, he defied his manager’s request to prioritise a news story about Prince George’s birth over a story about Black July (a time of remembrance in Sri Lanka for victims of anti-Tamil violence). A disciplinary procedure was commenced in relation to both incidents and, as a result, Mr Bandara was handed a final written warning in November 2013 to remain on file for 12 months.

A little later, a further investigation was carried out into allegations that Mr Bandara had bullied and intimidated his colleagues, created a ‘culture of fear’ in the office and disobeyed instructions. Following a disciplinary hearing, and taking into account the previous final written warning, Mr Bandala was dismissed in August 2014 on the grounds of gross misconduct. Mr Bandala claimed that the dismissal was unfair.

The Employment Appeal Tribunal upheld a decision that the prior final written warning was manifestly inappropriate in the circumstances. The decision as to whether Mr Bandara’s dismissal was fair overall must be considered in the light of that. If the prior written warning was solely background, and the later conduct was enough by itself to justify dismissal, the dismissal could be fair. However, if the unfair warning was relied upon, the EAT remarked that it would be hard to see how the dismissal decision could be reasonable.

In the light of this case, employers seeking to rely on a prior disciplinary sanction to support a dismissal decision should think critically about how the dismissal decision is worded; where there are multiple factors influencing the decision (such as a prior warning) the best approach is to try to cover both bases. One could say that whilst it is believed that the final act of misconduct was of itself gross misconduct and justified immediate dismissal, even if that were not the case, the combination of that act in the light of previous warnings was also sufficient to justify summary dismissal.

Bandara v British Broadcasting Corporation UKEAT/0335/15

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Workers can claim for not getting rest breaks they did not ask for

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A worker need not have expressly asked for a minimum rest break (twenty minutes every six hours) and been denied it to bring a claim under the Working Time legislation.

Mr Grange worked for Abellio London Limited from 2009; his job involved monitoring and regulating the company’s bus services. His working day was eight and a half hours, the half hour being an unpaid rest break. As of 2012, Abellio changed its schedule and the working day was reduced to 8 hours. The expectation was that staff would work through the shift without a break and leave earlier.

Mr Grange submitted a grievance in July 2014 stating that since the hours were changed in 2012, he had routinely worked without a meal break, which was affecting his health. He brought a claim in the Employment Tribunal claiming that Abellio had refused his right to rest breaks under the Working Time legislation.

Abellio’s argument was that as Mr Grange had never explicitly asked to take a break in the period he complained of, Abellio could not be seen as refusing his rights in that regard.

The Employment Appeal Tribunal agreed with Mr Grange. It held that, in order to bring a claim such as that brought by Mr Grange, a worker does not need to have explicitly asked to take a break and been refused. Instead, employers need to be proactive and ensure that their working arrangements allow for their staff to take breaks. If the working day is arranged such that a worker cannot take a break, their rights to do so have been refused.

In the light of this decision, it is wise for employers in high-pressured industries to check their working arrangements. If staff are routinely too busy to take breaks, an employer may be in violation of Working Time legislation even if nobody has complained at the time.

Grange v Abellio London Ltd [2016] UKEAT 0130/16/1611

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Bad publicity guaranteed: Employment Tribunal judgments will be available online

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HM Courts and Tribunals Service has confirmed that there will be an online database of Employment Tribunal judgments by the end of 2016 or the beginning of 2017.

HMCTS has stated that the database will enable people to access Employment Tribunal judgments which have been handed down since the database has been introduced.

Judgments handed down before the database has come into being will still have to be accessed in the traditional way; namely, writing to the Bury St Edmunds tribunal office and requesting a copy by post.  This method meant in practice that unless the press happened to be in attendance at a hearing (which was quite rare), it was very likely that a case could go to the tribunal and no-one would find out about it.

The new database means that any employers expecting a judgment in the New Year may find that the outcome of their case is far more public than it once would have been.

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