In Fallahi v TWI, the Employment Appeals Tribunal (EAT) concluded that it was fair to dismiss an employee following a Final Written Warning, even though he had challenged the basis on which that final warning had been imposed.

Mr Fallahi was given a final written warning because he failed to meet his targets. He was then dismissed.

The EAT concluded that the Tribunal did not have to consider the background to that final warning. The Tribunal had to consider the reasonableness of the dismissal in all the circumstances.

Whether or not the final warning was appropriate was just one factor. In this instance, the employer had been addressing performance issues for some time. The Tribunal’s decision not to go behind the final warning was not inappropriate.

The problem for employees is that if they receive a final written warning, they are then very vulnerable to dismissal, even for an unrelated issue. Employees would therefore be wise to appeal any such final warning and be ready to argue the point again at any subsequent dismissal hearing.

Generally, the Employment Tribunal will decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.

It does not matter whether the Tribunal would or would not have dismissed the employee if it had been in the employer’s shoes: The tribunal must not “substitute its view” for that of the employer.

The range of reasonable responses test applies as much to the investigation as the reason for dismissal. The more serious the allegation or the potential sanction, the more thorough the investigation should be.

For more information call one of our solicitors or see unfair dismissal

19 August 2021