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Unfair Dismissal - Capability

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Was it wrong for a tribunal not to 'go behind' a final written warning when considering if a capability dismissal was fair?

No, held the EAT in Fallahi v TWI, dismissing the appeal.

The Claimant had been dismissed on the back of a final written warning after failing to meet targets in his project management role. The tribunal held that the Claimant's dismissal was fair and declined to go behind the final written warning, disregarding various challenges to it.

The EAT applied Davies v Sandwell MBC and other authorities, noting the limited scope for going behind a final written warning when considering fairness. The tribunal was required to judge the reasonableness of the dismissal in all the circumstances, not simply whether the final warning was reasonable or appropriate, although that warning was a relevant factor, it was only one. Here the employer had been dealing with the continuum of the employee's performance over a long period, part of which led to a final written warning. The tribunal was entitled to find that the warning was not 'manifestly inappropriate' and so was within the range of reasonable responses (practically the same thing). The test for 'going behind' a final written warning applies to both conduct and capability warnings.

However, in conduct cases, a final warning can leave an employee 'hanging by a thread' at risk of dismissal for misconduct unrelated to that which led to a final written warning, so in such cases the 'validity' of the final warning is crucial.

Thanks to Ed McFarlane of Law at Work for preparing this case summary.