In Bandara v British Broadcasting Corporation, an employer dismissed an employee in reliance on both recent gross misconduct and a prior final written warning which the tribunal found to have been ‘manifestly inappropriate’.

The EAT ruled that, in determining whether dismissal was within the range of reasonable responses, the tribunal should not have considered what the position would have been, had the warning been an ordinary warning; instead it should have considered the extent to which the employer relied on the final written warning in deciding dismissal was justified, ie, whether it was given significant weight or simply viewed as background.

The case serves to highlight that, if the recent gross misconduct is ground enough for dismissal, employers should clearly state this in the dismissal letter, in order to avoid the appropriateness of an earlier warning being brought into question.