When considering whether a dismissal is fair following a final written warning, the role of the tribunal is to apply the statutory test of reasonableness, not to decide whether the warning was valid or not. In Fallahi v TWI Ltd, the Employment Appeal Tribunal (EAT) held that the tribunal was therefore right not to “go behind” the final written warning given to the claimant in this case.
After Mr Fallahi started work as Senior Project Leader, Technology, in June 2014, issues were repeatedly raised about his performance in 2015 and 2016.
Although a series of objectives were set for him, a review dated May 2016 highlighted a lack of progress. He was then given a final written warning for his “consistent underperformance”. When he failed to improve over the next two months, he was given the option of continuing with the review plan or leaving with one month’s pay.
Although he opted for the latter at the end of July, no formal agreement was reached. He then went on sick leave and was not finally dismissed until December 2016. He claimed unfair dismissal.
Applying the test in Davies v Sandwell MBC (weekly LELR 318) and Wincanton Group v Stone (weekly LELR 310), the tribunal held that it was not its job to decide whether the warning was legally valid or not. When considering whether dismissal was reasonable in all the circumstances under section 98(4) of the Employment Rights Act 1996, it could not therefore “look behind” the final written warning.
Instead, its role was to apply the statutory test of reasonableness to determine whether a reasonable employer could reasonably have taken the final warning into account when dismissing Mr Fallahi. As this warning was not “manifestly inappropriate” and was within the range of reasonable responses, the dismissal decision in this case was reasonable. Even if it had been procedurally unfair, the tribunal held that it was inevitable that a fair process would have led to dismissal.
Mr Fallahi appealed, arguing that the “manifestly inappropriate” test did not apply to warnings issued as part of a capability process. As such, the tribunal should not have required him to overcome it before considering flaws in the warning process.
Dismissing the appeal, the EAT emphasised that the job of the tribunal was to judge the reasonableness of the dismissal, not the reasonableness of the final warning. On the facts of this case, the tribunal was entitled to conclude that the company acted fairly in applying its internal procedures and a final written warning was not “manifestly inappropriate” in the Davies/Wincanton sense. It was also within the range of reasonable responses, not least because there was no practical difference between the two tests. Overall, the dismissal was therefore fair.
In relation to the “manifestly inappropriate” test, the EAT held that this was not confined to misconduct cases, but applied generally to all types of dismissal cases when tribunals were considering whether they could look behind a final written warning in their application of section 98(4). It acknowledged, however, that the test was more important in misconduct cases if an earlier final warning had left an employee “hanging by a thread”. In those circumstances, the employer might dismiss an employee even if the subsequent misconduct was less serious than the original incident. In those circumstances, the “validity” of the final warning was crucial, but this was not such a case. Instead, it was the result of a continuous and prolonged failure to achieve performance of a sufficient standard.