Employment Law Cases

Fallahi vTWI Ltd

A tribunal did not need to ‘look behind’ a final written warning to consider its fairness.

Background

Mr Fallahi worked for TWI as Senior Project Leader. TWI raised concerns about his performance which were initially dealt with via informal performance management and the setting of objectives and targets to be met over the following 12 months. However, before the first deadline arrived, Mr Fallahi’s manager felt there was a lack of progress and so a formal capability hearing was called, at which point a final written warning was issued. As part of the warning, a three-month review period, with objectives and targets, was set out. However, after only two months, Mr Fallahi was nowhere near meeting his objectives. TWI and Mr Fallahi subsequently began settlement negotiations and Mr Fallahi stayed off work sick. No settlement was agreed and a capability meeting was held. Mr Fallahi was dismissed on capability grounds in his absence. Mr Fallahi brought an unfair dismissal claim.

The tribunal dismissed the claim, stating that Mr Fallahi’s dismissal fell within the band of reasonable responses. Mr Fallahi argued that TWI’s sudden use of a final written warning wasn’t appropriate and he wanted the tribunal to explore TWI’s motives for taking such a step. However the tribunal said that it was not for it to look behind a final written warning if it is concluded that the written warning was issued in good faith and was not ‘manifestly inappropriate’ (which it did). Mr Fallahi appealed.

EAT decision

The appeal was dismissed.

There is a limited scope for going behind a final written warning when considering fairness. A tribunal is required to judge the reasonableness of the dismissal, and not the reasonableness or appropriateness of the final warning. The warning was only one relevant factor.

In some conduct cases, said the EAT, 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. But this was not such a case.

The EAT highlighted that concerns with Mr Fallahi’s performance were long standing and TWI’s capability procedure allowed it to go straight to final written warnings and that doing so was reasonable in this case. The procedural flaws Mr Fallahi had drawn on did not make the overall handling of the matter unfair, nor did it make the final decision to dismiss unfair.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/000110_19_1708.html

Comment

Tribunals will not seek to look behind warnings at an employer’s motives unless the issuing of the warning itself is clearly inappropriate. The decision also reminds employers to ensure that a fair dismissal process is followed. Where poor performance is at issue, this will normally involve giving more than one warning before dismissal, and it will generally only be reasonable to move straight to a final written warning where it is sufficiently serious.