Thanks to David Leslie of Lyons Davidson for preparing this case summary.
If a final written warning was found to be manifestly inappropriate such that the employer ought to ignore it when considering further misconduct, is it open to the employment tribunal to consider whether dismissal would have been fair if only a written warning had previously been given?
No, held the EAT in Bandara v BBC.
It was not for the employment tribunal to consider whether it was fair to dismiss for a hypothetical written warning instead. The right approach was to focus on the actual reasoning of the dismissing employer and to consider whether it acted reasonably. That meant asking how much weight had been given to the inappropriate warning when the employer decided to dismiss. The matter was remitted for the employment tribunal to consider that point.