Capability Dismissal ' A Tale Of Two Procedures

• Published date: 29 September 2021
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
• Law Firm: Winckworth Sherwood
• Author: Ms Danielle Crawford

In this case update, Danielle Crawford considers the recent case of Fallahi v TWI Ltd [2021] UKEAT 0110/19/1708 and whether the background to a final written warning should be taken into account when deciding the fairness of a dismissal.

Mr Fallahi was employed by TWI Limited as a senior project leader. Approximately eight months after commencing his employment, Mr Fallahi's manager arranged reviews with Mr Fallahi every two weeks following concerns which had been raised about his performance.

Approximately 11 months after concerns were first raised in respect of Mr Fallahi's performance, he was placed under an informal performance management process. The process required Mr Fallahi to meet specified objectives within a 6-to-12 month period.

Prior to the completion of the informal performance management process, Mr Fallahi was invited to a hearing under TWI Limited's disciplinary procedure on the basis that his performance was not improving and it fell short of the standard required for his role.

At the end of the first disciplinary procedure, Mr Fallahi was issued with a final written warning because TWI Limited considered that he had been underperforming for a prolonged period.

Approximately six months after the final written warning was issued, Mr Fallahi was dismissed for capability reasons under TWI Limited's disciplinary process.

Mr Fallahi brought a claim arguing that that TWI Limited had unfairly dismissed him under its disciplinary procedure rather than under its capability process. Mr Fallahi also challenged the decision to issue him with a final written warning under the disciplinary process before the expiry of the deadline for him to meet the objectives set for him under the capability process.

The Employment Tribunal concluded that had TWI Limited followed the capability process rather than the...