Can an employment tribunal consider the fairness of a final written warning when considering the fairness of a dismissal?

Not normally but it can in certain circumstances a Tribunal has found…

The Employment Appeal Tribunal (EAT) has found that an Employment Tribunal (ET) did not need to investigate the legitimacy of a final warning in a case of unfair dismissal on capability grounds.

In Mr E Fallahi v TWI Limited, the Appellant was employed as a Senior Project Leader, and his employer, the Respondent, had raised performance issues with him in January 2016, following which an informal performance process commenced. Targets were introduced which were to be met by June 2016, October 2016 and January 2017. Before those deadlines arrived the Appellant’s manager became concerned about his lack of progress and at a capability meeting in May 2016, a final written warning was issued and a three month review period was introduced.

After two months the Appellant’s manager did not feel that sufficient progress had been made. He was given the option of continuing with the performance plan or the ability to leave his employment with one months’ salary. The Appellant left work in July 2016, not intending to return, however no formal settlement was reached. He was therefore asked to return in August 2016 but submitted a sick note and  was placed on sick leave. In November that year the Appellant was dismissed on capability grounds.

The Appellant made a claim for unfair dismissal to the Employment Tribunal (ET). The ET applied the test set out in Davies v Sandwell MBC which is that an employer can rely on a final warning when dismissing an employee provided that: it was issued in good faith, that there were at least prima facie grounds for imposing it, and that it was not manifestly inappropriate to issue it.

The ET dismissed the claim, finding that the decision to dismissal for capability was reasonable, and that even if the process had been unfair, it was inevitable that a fair process would have led to dismissal.

The Appellant appealed to the EAT and argued that the ET had not carried out sufficient investigation into the legitimacy of the final warning.

On appeal at the EAT, the Tribunal found that the final warning was only one aspect of the Appellant’s dismissal, and that there were well known capability issues which had being ongoing for several months before the final warning was issued. The ET had therefore been entitled to find that the Respondent had carried out its internal procedures fairly, because there was no evidence that it was ‘manifestly inappropriate’ for the warning to be issued.

This will give some comfort to employers in knowing that a Tribunal is not normally going to make a finding of unfair dismissal if a final written warning was issued in good faith and it was not highly inappropriate to do so.

If you would like to discuss the above in more detail or if you require any employment law advice, please do not hesitate to contact a member of the Employment Law Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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