The Claimant received a final written warning after being charged with using abusive behaviour, refusing to follow a reasonable request by a manager and a breach of editorial guidelines. Shortly afterwards, the Respondent commenced a series of further investigations against the Claimant which culminated in further disciplinary charges and he was dismissed. The ET found that a warning would have been legitimate but that the final written warning that was given was manifestly excessive. However, the decision to dismiss was one which a reasonable employer could reach in all the circumstances. The Claimant appealed and the Respondent cross-appealed.

The EAT first dismissed the cross-appeal but allowed the appeal. Instead of asking how the Respondent took account of the final written warning and assessing his actions in accordance with section 98(4), it posited a hypothesis. Suppose the Claimant had been given a written warning; would the decision to dismiss have been fair? That was a significantly different question. The Employment Tribunal did not approach the matter correctly.

_________________

Appeal No. UKEAT/0335/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 9 June 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

BANDARA (APPELLANT)

**

**

BRITISH BROADCASTING CORPORATION (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEAL AND CROSS-APPEAL****APPEARANCES**

For the Appellant
MISS JUDE SHEPHERD (of Counsel)
Instructed by:
Fadiga & Co Solicitors
257-259 Balham High Road
London
SW17 7BD

For the Respondent
MR TOM BROWN (of Counsel)
Instructed by:
BBC Legal Department
Area B6, 2nd Floor
Broadcasting Centre
201 Wood Lane
London
W12 7TP

**SUMMARY**

UNFAIR DISMISSAL - Reasonableness of dismissal

The Employment Tribunal did not err in law in concluding that the final written warning issued to the Claimant by the Respondent was "manifestly inappropriate": cross-appeal dismissed.

The Employment Tribunal, however, erred in its application of section 98(4) of the Employment Rights Act 1996: rather than asking whether it was reasonable to dismiss on the footing that the warning given had been an ordinary written warning, it should have focussed upon the actual reasoning of the Respondent and asked whether, applying the objective standard of the reasonable employer, it acted reasonably in dismissing the Claimant. This would depend on how it took account of the final written warning. [Davies v Sandwell Metropolitan Borough Council]() [2013] IRLR 374 CA, [Wincanton Group plc v Stone]() [2013] IRLR 178 EAT, [Way v Spectrum Property Care Ltd ]()[2015] IRLR 657 CA considered and applied. Appeal allowed.

**HIS HONOUR JUDGE DAVID RICHARDSON****Introduction**

1. By a Judgment dated 30 July 2015 the Employment Tribunal sitting in Watford - Employment Judge Gay, Mr Lucking and Mr Javed - rejected claims of unlawful discrimination and unfair dismissal that Mr Bandara ("the Claimant") had brought about the British Broadcasting Corporation ("the Respondent"). This appeal concerns the Employment Tribunal's reasoning in respect of a final written warning that the Claimant had received prior to his dismissal. The Employment Tribunal held that the final written warning was manifestly inappropriate for the conduct with which the Claimant was charged. The Respondent by a cross-appeal says that conclusion was incorrect. The Employment Tribunal went on to hold that even though the final written warning was manifestly inappropriate, the dismissal was fair. The Claimant appeals against that conclusion.

**The Background Facts**

1. The Claimant was employed by the Respondent with effect from 20 July 1995 as a Producer. He was promoted to the position of Senior Producer about five years later. He worked within the Sinhala Service, a team of about ten people. His immediate manager was Mr Liyanage, the Sinhala Service Editor. He was second in line to Mr Liyanage. Mr Liyanage in turn was managed by Ms Swe. In May 2013 a further member of management, Mr Radojevic, was appointed to assist the Sinhala and certain other language services with improvements to their online services and news bulletins.

1. In the period up to 2013, nearly 18 years, the Claimant had an unblemished disciplinary record. Two incidents led to the loss of that unblemished record.

1. The first occurred on 18 March 2013. Ms Swe had asked the Claimant to book his team onto a training course. He said that that was the responsibility of Mr Liyanage. There was an argument. He shouted at Ms Swe. The following day he sent an email apologising for doing so. There the matter apparently lay. Ms Swe said she informed the Respondent's Human Resources department but they seem to have taken no action.

1. The second occurred on 23 July 2013. Prince George had been born the previous evening after the Sinhala Service had ended. In the morning the Claimant decided that he would not prioritise the story, apparently because the date was the 30th anniversary of Black July; a sombre date in Sri Lankan history. The Service opened at 10.00am. Mr Radojevic arrived soon afterwards. He disagreed with the Claimant's decision. The news of Prince George's birth was indeed widely reported internationally. The Claimant in due course changed his mind. The story went out at 12.08pm, two hours after the Service opened.

1. In August 2013 the Respondent brought disciplinary proceedings against the Claimant arising from both incidents. In respect of the March event, he was charged with using abusive behaviour and refusing to follow a reasonable request by a manager. In respect of the July incident he was charged with a breach of editorial guidelines.

1. By a letter dated 19 November 2013 the Respondent upheld these charges. Ms Iootty, who took the decision, imposed a final written warning. The operative part of her decision reads as follows:

"After carefully considering the allegations and your response to these, I have concluded that I believe that the allegations are true. This is an extremely serious matter as your behaviour in relation to both the incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC.

*

Outcome*

I have therefore decided the appropriate penalty to be Final Written Warning. This warning will remain live for 12 months, after which it will be disregarded for disciplinary purposes if no further incidences of misconduct occur."

1. Shortly afterwards, the Respondent commenced a series of further investigations against the Claimant. They culminated in further disciplinary charges. Eventually a disciplinary hearing took place on 14 May 2014 chaired by Mr Kerry Gonis, a manager from another department. By letter dated 15 August 2014 he summarily dismissed the Claimant. He found that most of the charges were proved. The charges he found proved included the following: applying pressure on Mr Liyanage in November 2013 to require Mr Radojevic to leave a team meeting, partially proved; applying pressure in November 2013 to Mr Liyanage by attempting to get him to drop existing disciplinary proceedings, partially proved; in respect of two incidents in November 2013, behaving in a bullying and intimidating manner; being involved in creating and perpetuating a "culture of fear" within the Sinhala Service; on a number of occasions describing Mr Radojevic in a discriminatory way, calling him "sudda" in a derogatory manner; refusing to obey an instruction from Mr Radojevic in January 2014; and shouting angrily to colleagues on two occasions, one in January and one in February 2014.

1. Mr Gonis, in his letter of dismissal, stated the following conclusion:

"Finally, I have considered all the points of mitigation you have brought to my attention including that you would be prepared to move to another part of the BBC. Unfortunately given the seriousness of the allegations and the fact that in all but one of the allegations I have upheld or partially upheld them I can only conclude that you have a disregard for your work colleagues, the BBC Policy's [sic] and Values and you do not accept the impact your behaviour can have on individuals. I understand this may not be the outcome you were hoping for but based on the information made available to me I find that you are guilty of gross misconduct and you are to be summarily dismissed (i.e. without notice or pay in lieu of notice) with effect from 15th August 2014."

1. This conclusion does not mention the final written warning. However, the warning is mentioned elsewhere in the letter. In particular, at the beginning of the letter Mr Gonis had stated:

"This has been a complex investigation involving a number of witnesses and three independent reports from investigating managers. Although not connected to my investigation I have taken into consideration that you currently have a final written warning which is still active. …"

1. In his witness statement prepared for the Employment Tribunal Mr Gonis made many references to the final written warning. He said the following concerning the disciplinary meeting:

"21. … Damian Deeney [a Human Resources manager] also explained that Mr Bandara had a live final written warning on his file, which was why his employment was at risk. …"

1. Later, Mr Gonis said:

"118. … When coming to my decision as to what sanction was appropriate, I took into consideration that Mr Bandara already had a final written warning and that several of the allegations I had upheld occurred after it was issued.

119. In addition, I felt that the allegations I had upheld were numerous and so serious that, considered as a whole, and in light of the final written warning, which was recent and for similar misconduct, they amounted to gross misconduct. Mr Bandara had behaved with complete disregard for the standards which the BBC expects of its employees and of his line managers' position, even when recently and specifically warned not to do so."

1. Hence, as we shall see, the Employment Tribunal held that Mr Gonis took the final written warning into account in deciding to dismiss the Claimant for gross misconduct.

**The Respondent's Disciplinary Procedure**

1. The Respondent's disciplinary procedure defined misconduct as including such matters as poor attendance, failure to observe policies and procedures, abusive behaviour and unreasonable refusal to follow an instruction issued by a manager. They defined gross misconduct as including such matters as assault, theft, serious negligence, endangering life, gross dereliction of duty, discrimination or harassment, or serious breach of confidence. The procedure also included a non-exhaustive list of sanctions. These were: written warning, final written warning, dismissal with notice, redeployment including demotion, and summary dismissal. A warning or final written warning would generally remain live for 12 months.

**The Employment Tribunal's Reasons**

1. It is relevant to mention that the Employment Tribunal had to determine, in addition to the question of unfair dismissal, questions concerning race discrimination and discrimination on the grounds of belief, which required it to address background issues in some detail. The hearing took approximately eight days. The Employment Tribunal listed, as an allegation of unfairness made by the Claimant, taking the final written warning into account in arriving at the decision to dismiss (see paragraph 28.4.4 of its Reasons). It did not mention the potential significance of the final written warning in its summary of the applicable law, but it was plainly aware of the concept of a "manifestly inappropriate" warning, to which I shall come in a moment.

1. The Employment Tribunal made its findings on this issue at some length in paragraphs 34.32 to 34.46. It noted that its significance was that the final written warning was:

"34.32. … still live at the time of the disciplinary process that led to the claimant's dismissal and that it was taken into account then. …"

1. It noted the evidence of Ms Iootty to the effect that she concluded that there was gross misconduct for which she could have dismissed the Claimant. It referred to the ACAS Code and to the respective definitions of misconduct and gross misconduct in the Respondent's procedure. It found that Ms Iootty did not treat the Claimant's disciplinary record as a point in his favour. It said that she should have done. Its key conclusions appear from paragraphs 34.43 and 34.46:

"34.43. On a straight reading of the charges found against the claimant, we find that they fall squarely within the examples of misconduct and not gross misconduct.

…

34.46. In order to understand our findings subsequently, it assists to know at this stage that the tribunal concluded that the award of a final written warning for the conduct with which the claimant was charged was manifestly inappropriate. We are aware of the dangers of substituting our own view for those of the people involved at the time, however we note that there were only three charges relating to two incidents. One of those incidents had happened many months earlier, had been the subject of an unforced apology (albeit slightly mealy mouthed) from the claimant and had not been pursued internally despite the involvement of two relatively senior managers (Ms Swe and Ms Clarke). It was a matter which the claimant was legitimately entitled to think was closed and it was not something which months later could fairly have been resurrected as a substantial part of a final written warning. We rely heavily here on the examples of misconduct identified by the respondent's disciplinary code. That code is intended to guide employees and they are entitled to rely on it. On the other hand, the respondent was legitimately entitled to conclude that there had been misconduct, that more than an informal warning was warranted and that the claimant should be given a written warning. If the test for unfair dismissal were to be applied, which is perhaps similar to 'manifestly inappropriate', it would have been met. On this occasion a final written warning is at stake and we are satisfied that it was manifestly inappropriate to give it."

1. Later it returned to this question and said in paragraphs 48 and 50:

"48. We have concluded that it was manifestly inappropriate for the claimant to receive a final written warning from Miss Iootty. What he had done did not fit the definition of gross misconduct; he had 18 years [sic] unblemished service; he had sent an immediate apology to Ms Swe. Bearing in mind the ACAS code and the effect of the delay, in respect of the royal baby story we are confident of our conclusion here. We acknowledge the concerns that Miss Iootty expressed but we think that they were to do with her failure to understand the significance of the claimant having 18 years' unblemished employment record and her improper consideration, when deciding the sanction, of unproven, uncharged issues which had been unearthed during the investigation. It may be that this last confusion would not have occurred if the respondent had ensured separation of the investigation and the disciplinary processes, but that view with hindsight did not render it wrong of itself. The outcome is what is clearly wrong and excessive.

…

50. Our conclusion here is that a warning would have been legitimate but that the final written warning that was given was manifestly excessive."

1. The Employment Tribunal went on to find that Mr Gonis had reasonable grounds for believing that the Claimant had committed the acts that he found proved, that there had been extensive investigation and that the disciplinary process was reasonable. It then turned to the question of sanction. I shall set out this paragraph in full (paragraph 56):

"56. We move on to consider the reasonableness of the sanction of dismissal. We have accepted that Mr Gonis was upholding a considerable number of serious allegations; that the claimant had recently received a warning; that Mr Gonis was entitled to take into account the claimant did not acknowledge the wrong-doing or show any remorse or insight. We have accepted that, apart from the matter that led to the recent warning, the claimant's conduct had not previously been challenged, Mr Gonis properly noted - and we recognise - that much of the wrong-doing came very soon after the warning. It appears that before Mr Gonis there was no clear identification of the fact that some incidents predated the warning, but we bear in mind both that the first disciplinary process was occurring at the time of the new acts of misconduct and the claimant was aware that some of his conduct was viewed as sub-standard and further that most of the acts occurred after the final written warning had been given. We recognise that we have found that Mr Gonis did not place appropriate weight on the claimant's 18 years of good service. We recognise also that we found that there should only have been a warning and not a final written warning. When it occurred to us that matters might reach that stage, we discussed among ourselves whether we should ask Mr Gonis what would have happened if the claimant had had only a warning. However, we concluded that we should not ask him because it would have been a hypothetical question and one which invited an obvious answer. We felt that the decision that we had to reach was whether in all the circumstances the respondent reached a reasonable decision, that is one within the range which a reasonable employer could impose. We consider that if, properly, the claimant had been given only a written warning the first time round, it would still have been live and still something properly to be taken into account when Mr Gonis considered matters. In those circumstances the fact that it was a written warning rather than a final written warning would not have rendered the decision to dismiss improper or unreasonable or excessive and beyond the range. So our conclusion is that the decision to dismiss was one which a reasonable employer could reach in all the circumstances."

**Statutory Provisions**

1. Section 98(4) of the Employment Rights Act 1996 ("ERA") provides as follows:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. The ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by the Employment Tribunal if it is relevant to a question arising during the proceedings (see section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). The following paragraphs of the 2015 Code are relevant:

"19. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.

20. If an employee's first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation.

21. A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

…

23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.

24. Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination."

The 2009 Disciplinary Code was relevant at the time when the Claimant was dismissed. It was from this Code that the Employment Tribunal quoted. The material provisions are the same, although the paragraph numbers are different.

**Submissions**

1. It is logical first to consider the Employment Tribunal's conclusion that the final written warning was manifestly inappropriate. On behalf of the Respondent Mr Tom Brown submits that the Employment Tribunal fell into error in two ways. Firstly, he submits that the Employment Tribunal did not apply section 98(4) in respect of its approach to the final written warning. He argues that the way in which the Employment Tribunal expressed itself shows that it substituted its own view for the objective view of the reasonable employer. He particularly submits that it substituted its own view about the Claimant's clean disciplinary record. In his skeleton argument he referred me to some cases on this question including AEI Cables Ltd v McLay [1980] IRLR 84 CS, London Borough of Harrow v Cunningham [1996] IRLR 256 EAT and [Brito-Babapulle v Ealing Hospital NHS Trust ]()[2013] IRLR 854 EAT.

1. Secondly, he submits that the Employment Tribunal wrongly equated manifest inappropriateness with the range of reasonable responses test. He took me through relevant decisions, including in particular Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA, and submitted that in context a final written warning will only be manifestly inappropriate if a subsequent decision maker considering dismissal will be able to see that it is inappropriate to rely on it, otherwise it will be objectively reasonable for the employer to rely on it, and the section 98(4) test will be satisfied.

1. In response to these submissions Miss Jude Shepherd, for the Claimant, submits that the Employment Tribunal did not fall into error of law in these ways. There is no rule of law that the Employment Tribunal may not look into the circumstances in which a final written warning was given (see Co-operative Retail Services Ltd v Lucas UKEAT/145/93 and Simmonds v Milford Club . While the test for manifest inappropriateness is not the same as the range of reasonable responses test, the two are linked, and the Employment Tribunal did not fall into the error of saying that they were the same.

1. On the question whether the dismissal was fair Miss Shepherd submits that the Employment Tribunal fell into error by taking into account a hypothetical written warning that was never given merely because it concluded it would have been reasonable to give it. Its task was to review the actions of the employer by the standard of the reasonable employer. Once it had found the final written warning to be manifestly inappropriate, the Employment Tribunal should have left it out of account altogether (see Wincanton Group plc v Stone [2013] IRLR 178 EAT at paragraph 37 and Way v Spectrum Property Care Ltd [2015] IRLR 657 CA at paragraph 54). In any event, the Employment Tribunal did not consider what might follow if the initial warning had only been a first warning for misconduct. It should have had regard to the ACAS Code. The normal sanction for further misconduct would be a final written warning (see paragraph 18 of the 2009 Code). Neither the Employment Tribunal nor Mr Gonis found that the conduct in question amounted in itself to gross misconduct.

1. Mr Brown argues that the dismissal was not necessarily unfair even if the final written warning was manifestly inappropriate. He submitted that Wincanton and Way had to be read in the light of Davies, where Mummery LJ said no more than that such a written warning would be a relevant consideration, and Orr v Milton Keynes Council [2011] ICR 704 CA, which emphasised that the Employment Tribunal should focus upon the knowledge of the manager deputed to take the decision to dismiss. A dismissal may be unfair even if the employer does not establish his grounds in full (see Smith v City of Glasgow District Council [1987] IRLR 326 HL and Robinson v Combat Stress . Here, the Employment Tribunal was entitled to find that it was reasonable to dismiss for the subsequent misconduct. It was not required to leave out of account that the Claimant had received a clear indication of the standards required of him or that he had been guilty of some misconduct in the past.

**Discussion and Conclusions**

1. The task of an Employment Tribunal, applying section 98(4) of the Employment Rights Act 1996, is well known. It must start from the employer's reason for dismissal. It is to ask whether the employer acted reasonably in treating it as a sufficient reason for dismissal. It will consider each aspect of the employer's actions and conclusions, which in a conduct case will include the employer's investigation, disciplinary process, factual findings and sanction. If the employer took into account a final written warning, it will consider that as part of its evaluation. I shall come to this in a moment. It will apply across the board the standard of the reasonable employer, recognising that there is often a range of ways in which a reasonable employer can act but also that the range is not infinite. It will be careful to apply the standard of the reasonable employer not substituting its own conclusion.

1. The task of the Employment Appeal Tribunal is also well established. Its remit is only to correct errors of law. It must itself take care not to substitute its own view for that of the Employment Tribunal. It will read the reasons of the Employment Tribunal in the round, not taking an overly technical or pernickety approach.

1. Where an employer has taken a previous sanction, such as a final written warning, into account, the Employment Tribunal's approach flows from the wording of section 98(4). See Mummery LJ at paragraph 22 in Davies, who summarised the position as follows:

"19. The correct starting point for this appeal is Part X of the Employment Rights Act 1996. It enacts the law of unfair dismissal. Section 98, which the ET cited in their first judgment (p.9), provides that:

'(4) … the determination of any question whether the dismissal is fair or unfair having regard to the reason shown by the employer -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.'

20. As for the authorities cited on final warnings, Elias LJ observed, when granting permission to appeal, that the essential principle laid down in them is that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it.

21. I agree with that statement and add some comments.

22. First, the guiding principle in determining whether a dismissal is fair or unfair in cases where there has been a prior final warning does not originate in the cases, which are but instances of the application of s.98(4) to particular sets of facts. The broad test laid down in s.98(4) is whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant.

23. Secondly, in answering that question, it is not the function of the ET to reopen the final warning and rule on an issue raised by the claimant as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a 'nullity'. The function of the ET is to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance, which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct.

24. Thirdly, it is relevant for the ET to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning. They are material factors in assessing the reasonableness of the decision to dismiss by reference to, inter alia, the circumstance of the final warning."

1. The guidance is not of course a replacement for the statutory test in section 98(4). It is helpful guidance as to the operation of the statute that Employment Tribunals must take into account. Generally speaking, earlier decisions by an employer should be regarded by an Employment Tribunal as established background that should not be reopened. It should be exceptional to do so (see Beatson LJ at paragraph 38). An earlier disciplinary sanction can of course only be open to criticism if it was unreasonable by the objective standard of the reasonable employer, but that is not enough, otherwise the Employment Tribunal would have to reopen and reinvestigate previous disciplinary sanctions whenever an employee was aggrieved by them. A threshold has to be set. An allegation of bad faith that has some real substance to it, as in Way, will be one example. So will the absence of any prima facie grounds for the sanction. So will something that makes the sanction manifestly inappropriate. I think a sanction will only be manifestly inappropriate if there is something about its imposition that once pointed out shows that it plainly ought not to have been imposed.

1. The task of the Employment Appeal Tribunal where an Employment Tribunal reaches this conclusion is limited. So long as there is no misdirection in the Employment Tribunal's legal approach, the Employment Appeal Tribunal must not interfere. It must not substitute its own view of what is manifestly inappropriate for that of the Employment Tribunal.

1. In this case the Employment Tribunal was, to my mind, entitled to conclude that the sanction plainly ought not to have been imposed. The letter imposing the sanction said that the misconduct identified amounted to gross misconduct. The Employment Tribunal was entitled to take the view that the misconduct plainly did not amount to gross misconduct either on a reading of the Respondent's own disciplinary procedure or by generally accepted standards. The Employment Tribunal made this point in paragraph 34.43 of its Reasons.

1. I can see no error of law in that conclusion. I do not accept Mr Brown's submission that the Employment Tribunal erred in law by confusing the "range of reasonable responses" test with the question of whether the sanction was manifestly inappropriate. As I have explained, a sanction will never be manifestly inappropriate if it was within the range of reasonable responses; so, an Employment Tribunal will always have to consider that question. But it is apparent here that the Employment Tribunal did not only consider that question; it also considered whether the warning was manifestly inappropriate. It found that on a reading of the decision letter against the criteria for gross misconduct the decision that the two instances amounted to gross misconduct simply could not be justified. It was entitled to add into this conclusion other points that it set out in its Reasons, for example in paragraph 48.

1. Nor do I accept Mr Brown's submission that the Employment Tribunal substituted its own view for that of the Respondent. The Employment Tribunal plainly did not do so: see paragraph 34.46 for its recognition as a baseline of the range of reasonable responses test. I do not accept that either the Employment Tribunal's language or its reasoning is indicative of a substitutionary mindset.

1. I should say a word about Mr Brown's submission that the Employment Tribunal evinced such a mindset by remarking that Ms Iootty ought to have regarded the Claimant's clean disciplinary record as a matter weighing in his favour. I do not think that this is indicative of a substitutionary mindset. An Employment Tribunal, applying the objective standard of the reasonable employer, is entitled to take the view that a clean disciplinary record over many years is a matter that an employer should regard as a factor in an employee's favour. I do not think any of the cases that Mr Brown cited establish a proposition to the contrary.

1. I therefore consider that the Employment Tribunal was entitled to conclude that the imposition of the final written warning was manifestly inappropriate. I turn to the question whether it has addressed this finding correctly when finding that the dismissal was nevertheless fair.

1. It is convenient to begin with Wincanton. In that case the President gave specific guidance to Employment Tribunals. He said:

"37. We can summarise our view of the law as it stands, for the benefit of tribunals who may later have to consider the relevance of an earlier warning. A tribunal must always begin by remembering that it is considering a question of dismissal to which s.98, and in particular s.98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer's act in treating conduct as a reason for the dismissal. If a tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. …"

1. In Way the Court of Appeal was concerned with a case where it was alleged that a warning was given in bad faith. The Employment Appeal Tribunal's decision had proceeded on the basis that even if a warning were given in bad faith the Respondent was entitled to have regard to it. Christopher Clarke LJ, in a Judgment with which Patten LJ and Hallett LJ agreed, cited Wincanton and said this:

"54. In my judgment a warning given in bad faith is not, in circumstances such as these, to be taken into account in deciding whether there is, or was, sufficient reason for dismissing an employee. An employer would not be acting reasonably in taking into account such a warning when deciding whether the employee's conduct was sufficient reason for dismissing him; and it would not be in accordance with equity or the substantial merits of the case to do so. To hold otherwise would be inconsistent with the decisions in Davies and Wincanton Group. In reality the judgment of the EAT proceeds on the basis that a warning given in bad faith may be relied upon to justify a dismissal which, absent the warning, would not have occurred. In so doing the EAT was in error."

1. To my mind, Mr Brown's submissions about Wincanton and Way amounted to seeking to distinguish them or minimise them. I think, however, that they lay down and were intended to lay down principles that the Employment Tribunal should follow and that flow from section 98(4). I do not think there is a conflict between Davies on the one hand and Wincanton and Way on the other. When Mummery LJ said that it was no part of the duty of the Employment Tribunal to reopen a final warning, he did not intend that principle to conflict with what he said in the next paragraph, namely that if a warning were manifestly inappropriate it was a material factor in assessing the reasonableness of the dismissal. Wincanton and Way develop the consequences of that approach. Nor do I think that Orr bears upon this question. That case was concerned the question whether the dismissing officer should have imputed to him the knowledge of other employees. This case, to the contrary, is concerned with whether a member of management in whom a disciplinary function is vested has dealt correctly with that disciplinary function.

1. What, then, should the approach of the Employment Tribunal be where an employer has dismissed an employee for misconduct following a final written warning that it considers to be manifestly inappropriate? The Employment Tribunal's task is not to put forward a hypothesis of its own but to examine the reasoning of the employer and see whether, given the employer's reasoning, the decision to dismiss was or was not reasonable having regard to equity and the substantial merits of the case. It must therefore examine whether the employer relied on the final written warning: see Wincanton and Way.

1. Much will depend, therefore, on whether the employer attached significant weight to the manifestly inappropriate final warning. If the employer did not, for example if it treated the warning as no more than background or as indicative of the standard to be expected of an employee, and if in reality it dismissed for the misconduct alleged in the new disciplinary proceedings, the Employment Tribunal may be entitled to find that the dismissal was fair, though it must take care to apply the section 98(4) test. But if the employer attached significant weight to the warning, for example starting from the proposition that the employee was to be dismissed for any significant misconduct because he was already subject to a final written warning, then it is difficult to see how the employer's decision can have been reasonable.

1. I do not think that this was the Employment Tribunal's approach in paragraph 56 of its Reasons. Instead of asking how Mr Gonis took account of the final written warning and assessing his actions in accordance with section 98(4), it posited a hypothesis. Suppose the Claimant had been given a written warning; would the decision to dismiss have been fair? That is a significantly different question. It does not start, as it should, from the reasoning of the employer and review the employer's reasoning. I therefore consider that the Employment Tribunal did not approach the matter correctly in accordance with paragraph 56 of its Reasons.

1. Miss Shepherd and Mr Brown took very different positions on the extent to which Mr Gonis did take account of the final written warning. The Employment Tribunal, having concentrated on the hypothetical question that it posed, did not make any very clear findings on this question beyond saying that Mr Gonis did take account of it. It is striking that Mr Gonis recorded in his statement what Human Resources told the Claimant about the final written warning; and there are striking mentions of the final written warning in his statement that may indicate that Mr Gonis treated it as far more than background; but I cannot say that only one conclusion is possible. In such a circumstance the Employment Appeal Tribunal's role is limited. It is not entitled to make its own factual assessment. It must remit the matter for assessment to be made (see Jafri v Lincoln College .

1. On remission the Employment Tribunal will, I expect, hear submissions relating not only to unfair dismissal but to the questions of Polkey v A E Dayton Services Ltd [1987] IRLR 503 HL and contributory condition that had also been for its decision at the hearing (see paragraph 28.5 of the list of issues). If it finds the dismissal unfair the Employment Tribunal will no doubt go on to consider these issues - again having regard to actual past facts, not from the standpoint of a hypothetical written warning. Miss Shepherd will no doubt submit for the purposes of Polkey that if the Claimant had not been subject to a manifestly inappropriate final warning, he would not have been dismissed: that is a matter which the Employment Tribunal will approach by applying the Polkey test, which requires an assessment of prospects rather than a "balance of probability" conclusion.

1. Against this background I turn to the question of whether remission should be to the same Employment Tribunal, assuming it to be available, or a differently constituted Employment Tribunal. Such a decision is taken in accordance with the overriding objective and guidance set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT at paragraph 46. I have considered that guidance carefully. I see no reason at all in this case to suppose that the Employment Tribunal will be guilty of bias or partiality, a relevant question for the purposes of Heard. In this case, it made trenchant findings about the final written warning. Nor do I have any doubts about the Employment Tribunal's independence or professionalism. It has set out its decision carefully and would no doubt have been assisted if reference had been made to Wincanton. By no means could the Employment Tribunal's decision be considered a totally flawed one. The question of proportionality also points to the same Employment Tribunal dealing with the matter. The risk always exists that an Employment Tribunal will not approach the matter afresh, but Tribunal professionalism usually indicates that it will, and I have no doubt that it will here. It follows that remission will be to the same Employment Tribunal, a course that will involve considerable saving of time and expense.