Fairness of the Final Written Warning is Irrelevant
Employers often have a tough time dealing with managing employee poor performance. Poor performance (under the heading of capability) is one of the five potentially fair reasons for dismissal. Having established a potentially fair reason for dismissal, an employer must show that the decision to dismiss was reasonable in all the circumstances, including that a fair procedure was followed, which in a poor performance case, will typically involve the issue of warnings setting out the required improvement and timescale within which to improve. In Fallahi v TWI, the tribunal refused to go behind a final written warning because it was not “manifestly inappropriate” and was just one factor leading to the employee’s dismissal.
Issues were raised about Mr Fallahi’s performance as a Senior Project Leader in technology during the first two years of his employment. An informal performance management process began on 26 January 2016 where objectives were set and targets scheduled for later in 2016 and January 2017. Regular weekly review meetings took place but by May 2016, Mr Fallahi’s manager had become frustrated with his lack of progress and invited him to a capability meeting. A further three-month review was set after Mr Fallahi was issued with a final written warning. Mr Fallahi didn’t appeal the written warning.
Two months later the employee was nowhere near meeting two thirds of his objectives and his employer remained unhappy and offered a month’s pay to leave, or the option to return and complete his third month of review. Mr Fallahi decided to leave but didn’t enter into a settlement agreement. Instead, when asked to return to work, he went off sick and declined to attend further performance management and capability hearings on the grounds of sickness (Occupational Health advised his employer he was fit to attend the meetings). Eventually Mr Fallahi was dismissed for capability in November 2016 but he claimed unfair dismissal, saying his employer hadn’t followed their own procedures and his final written warning was unfair.
The Employment Tribunal agreed with the employer – their decision to dismiss had been reasonable. The tribunal concluded that, even if the dismissal had been procedurally unfair, the outcome would have still led to dismissal following a fair process. Mr Fallahi appealed but the Employment Appeal Tribunal agreed with the tribunal, adding it was the tribunal’s job to judge the overall reasonableness of the dismissal, not the fairness of the final written warning. The employee’s long-term poor performance and lack of any improvement was found to be far more relevant than the warning itself.
Following your own procedures is vital, at every stage of the process, and avoids arguments being played out in the courts.
