Capability and conduct dismissals

Can the Employment Tribunal “go behind' a final written warning? Madeleine Shields reports on a recent Employment Appeal Tribunal ruling.

In a recent case, a tribunal held that the employee's dismissal was fair and declined to look behind the final written warning, disregarding various challenges to it. The employee appealed this decision.

In Fallahi v TWI Ltd (UNFAIR DISMISSAL) [2021] UKEAT 0110_19_1708 the Employment Appeal Tribunal (EAT) dismissed the appeal, stating that the employment tribunal (ET) had limited scope for looking behind the final written warning when considering fairness. The ET was required to judge the reasonableness of the dismissal in all the circumstances, not simply whether the final warning was reasonable or appropriate.

Fallahi v TWI

Mr Fallahi worked as a Senior Project Leader and issues over his performance were raised in the first 18 months of his role. Mr Fallahi was invited to a capability hearing by letter, which said (amongst other things): "I must advise you that a potential outcome of the hearing could be a first or final written warning."

Mr Fallahi was issued with a final written warning after the meeting, and was set objectives over the next three months. However, after only two months, Mr Fallahi was nowhere near meeting his objectives. His employer therefore offered him the option of continuing with the review plan, or leaving with one month’s pay as compensation. However, Mr Fallahi's employment did not end, and he was instead signed off sick. He was given notice of dismissal several months later and brought a claim for unfair dismissal.

What was the ET's decision?

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

Mr Fallahi's appeal

Mr Fallahi's grounds of appeal included:

• The ET was wrong to conclude that it could not go behind the final written warning. It was wrong of the ET to find that the final written warning was within the range of reasonable responses and not 'manifestly inappropriate.'
• The ET was wrong to consider whether the final written warning was manifestly inappropriate, rather than considering whether procedural flaws in the warning process tainted the ultimate decision to dismiss.

When considering the grounds of appeal, the EAT noted the limited scope for going behind a final written warning when considering fairness. The ET was required to judge the reasonableness of the dismissal in all the circumstances, not simply whether the final warning was reasonable or appropriate. The warning was only one relevant factor.

The ET noted although in some conduct cases, a final warning can leave an employee 'hanging by a thread' (leaving them at risk of dismissal for misconduct which may be unconnected to the misconduct resulting in the final written warning in the first place). In such cases, the 'validity' of the final warning will be critical. However, the ET held that this was not such a case.

In this case, the employer had been dealing with the performance issues of the employee over a long period, part of which led to a final written warning. The ET was therefore entitled to find that the warning was not 'manifestly inappropriate' in all of the circumstances, and that it was within the range of reasonable responses.

What can we learn from this case?

This decision confirms that when considering the fairness of a dismissal, a tribunal will not look behind a final written warning unless it was 'manifestly inappropriate'. This test is not limited to misconduct cases, and can be applied more generally, including to capability dismissals.

However, the case is a helpful reminder for employers to ensure a fair dismissal process is followed. In cases of poor performance, this will normally involve giving more than one warning prior to dismissal, and it will generally only be reasonable to move straight to a final written warning where it is sufficiently serious.

Madeleine Shields is a solicitor at VWV.