The decision to dismiss an employee after he received a final warning about his capability was both fair and reasonable.

That was the decision of the Employment Appeal Tribunal in a case involving Mr Fallahi v TWI Ltd.

Fallahi began working for TWI as a senior project leader in June 2014. In February 2015, the company raised concerns about his performance, and he began having fortnightly review meetings with his manager.

There was little improvement, and in January 2016 TWI began an informal performance management process.

However, there was a continued lack of progress over the next five months. In May 2016 he was invited to a capability hearing under the disciplinary procedure to consider whether he could meet the standard required of his role.

He was issued with a final warning after the company concluded that he had been consistently underperforming for a considerable period. His performance did not improve, and he was given notice of dismissal in November 2016.

Fallahi claimed that the dismissal was unfair because TWI had used its disciplinary procedure rather than its capability procedure and had moved straight to the final warning stage before the informally set deadlines for his objectives had passed.

The Employment Tribunal found that even if the company had used its capability procedure, the outcome would have been the same. Regarding the final warning, the tribunal decided that the warning was not “manifestly inappropriate” and was within the range of reasonable responses open to the company under the Employment Rights Act 1996.

It concluded that TWI had acted reasonably in dismissing Fallahi on the grounds of capability.

He appealed, saying that the tribunal had erred in finding that the final written warning was not manifestly inappropriate and the company’s use of the disciplinary procedure instead of the capability procedure was unfair.

The Employment Appeal Tribunal upheld the decision.

It held that the tribunal had not erred in its approach. Its task was to judge the reasonableness of the dismissal, not the reasonableness or appropriateness of the final warning.

What mattered was not the warning but the poor performance and lack of improvement. For those reasons, Fallahi’s objections to the procedure did not undermine either the company’s decision to dismiss or the tribunal’s decision that dismissal overall was reasonable.

Further, internal procedures were not laws. If an employer departed from an internal procedure, it would not render a dismissal automatically unfair. Rather, it would be one of the circumstances to consider.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

Fallahi v TWI Ltd
Employment Appeal Tribunal
Judgment Date
17 August 2021
Bourne J

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