This is a matter that was considered in the case of Bandara.
In this case the employee, Mr Bandara, raised claims of unfair dismissal (and race discrimination and discrimination on grounds of belief neither of which are considered here). He was employed as a producer by the BBC in the Sinhala Service. Mr Bandara had an unblemished record for 18 years. On 18 March 2013 he had an argument about a work related matter (his failure to book his team on a training course) with a manager which resulted in Mr Bandara shouting at his manager. He apologised to her by email the following day. The incident was reported to HR but no action was taken.
On 23 July 2013, the day after Prince George was born, Mr Bandara decided not to give that top billing when the Sinhala Service opened at 10am due to another important story. Another manager arrived shortly afterwards and disagreed with this decision. Mr Bandara also changed his mind and the story regarding the birth of Prince George went out on the Sinhala Service at 12.08.
In August 2013, disciplinary proceedings were brought against Mr Bandara based on these two incidents. In relation to the earlier incident in March 2013 he was charged with abusive behaviour and refusing to follow a reasonable request by a manager and the latter incident was classified as a potential breach of editorial guidelines.
The charges were upheld and a final written warning issued in November 2013 in which it was stated that Mr Bandara's conduct "potentially constitutes gross misconduct" but it was acknowledged that his "behaviour has never been formally addressed before". The warning was to remain live for a period of 12 months.
Further disciplinary proceedings were instigated in relation to Mr Bandara's conduct. A disciplinary hearing was held on 14 May 2014, chaired by Mr Gonis, and a decision was issued on 15 August 2014 in which it was confirmed that Mr Bandara's employment would be terminated. The letter of dismissal referred to the final written warning and stated "although not connected to my investigation I have taken into consideration that you currently have a final written warning which is still active…"
The ET found that the issuing of the final written warning in November 2013 was manifestly inappropriate. In reaching this conclusion it referred to the failure on the part of the decision maker to take into account Mr Bandara's long, unblemished service and the delay between the incident in March and the subsequent disciplinary proceedings in August. It felt that the Claimant was entitled to think that the matter had been laid to rest by that time. Further it said that the decision maker had improperly considered unproven, uncharged issues which had been uncovered during the disciplinary process. However, it concluded that, even though the issuing of a final written warning was manifestly inappropriate, in this case, it could still say that dismissal in all of the circumstances was within the band of reasonable responses available to an employer.