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How Final are Final Written Warnings?

View profile for Chris Dobbs
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How Final are Final Written Warnings?

A recent Employment Appeal Tribunal case looked at the extent to which a Tribunal is expected to look beyond a ‘final written warning’ in assessing the fairness of a dismissal.

Employment solicitor Chris Dobbs considers when a final written warning and a capability dismissal is unfair.

Fallahi v TWI Ltd: Case Background

In the case of Fallahi v TWI Ltd, the Claimant had been subject to an informal performance management process in January 2016.

Targets were set for the Claimant with several measurement/assessment dates throughout the year.

The company decided even before the first of these deadlines that performance had not sufficiently improved and the Claimant was issued with a final written warning.

When is a final written warning unfair?

He eventually went on sick leave in July and it was during this sickness absence that he was eventually dismissed on capability grounds in November.

The Tribunal dismissed him claim saying that because the final written warning was not ‘manifestly inappropriate’ it could not look beyond that warning in deciding on fairness.

In other words, if the final written warning was not made unfairly, the Tribunal is only concerned with the decision to dismiss in light of that warning.

When is a capability dismissal unfair?

Under s98 of the Employment Rights Act, an employer has the burden of proof to show that it acted reasonably in treating capability as grounds for dismissal.

This means showing that they gave the employee an opportunity to improve against reasonably, measurable targets over a fair timeframe and that any standards they are holding the employee against are understandable.

Remedial steps should be considered and any reasonable ones attempted before reaching dismissal.

When is a final written warning ‘manifestly inappropriate’?

However, the tribunal in this case applied a test from existing case law. In 2013, Davies v Sandwell and Wincanton Group v Stone both saw appeal judges address the issue of final warnings.

In both cases the conclusion was that if a final written warning was not itself ‘manifestly inappropriate’ as a response to the prior conduct, it is not for a Tribunal to look further back than the warning in order to make a decision on the fairness of the actual dismissal.

To what extent can employers rely on final written warnings?

These cases do not, of course, simply allow employers to issue final written warnings and feel safe that having done so they will be able to dismiss an employee in the near future. The Court of Appeal were clear in Davies that:

“it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it”

Imposing a final written warning without following procedure or without sufficient cause could fail this test. A dismissal based on an unjust written warning could, therefore, still be unfair.

A specialist employment solicitor’s view

Chris Dobbs says: “Straightforward unfair dismissals are one of the few areas where employment law is arguably slanted in employers’ favours.

The test for unfairness is largely based on reasonableness of the employer’s decision in the circumstances of the employer and with their knowledge.

The Tribunal cannot substitute their finding even if the individual judge considers that dismissal may have been a harsh outcome. Dismissal must have been beyond the range of reasonable responses of an employer in order to be unfair.”

When is dismissal justifiable?

Chris continues: “This case, and those before it, also confirms that employers can rely on properly conducted internal processes to justify a decision to dismiss.

Having a fairly-implemented and thorough process in place prior to a dismissal will often help in arguing that the dismissal was a reasonable outcome.”

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