Fallahi v TWI Ltd (Unfair Dismissal): EAT 17 Aug 2021

‘Manifestly Inapproproiate’ is a general Test

The Appellant was employed as Senior Project Leader – Technology. The Respondent raised issues about his performance. On 26 January 2016 an informal performance management process commenced and objectives were set, with targets to be measured in June 2016, October 2016 and January 2017. Before those deadlines arrived, his manager was concerned about a lack of progress and he was invited to a capability hearing on 26 May 2016, at which he was given a final written warning. A three month review period was set but after two months his manager considered that insufficient progress had been made. On 29 July 2016 the Appellant left work, and thereafter was on sick leave. On 8 November 2016 he was given notice of dismissal on capability grounds. He claimed unfair dismissal. The Employment Tribunal dismissed his claim. When considering whether dismissal was reasonable in all the circumstances, under section 98(4) of the Employment Rights Act 1996, it held that it could not look behind the final written warning which was not ‘manifestly inappropriate’, applying the test in Davies v Sandwell MBC [2013] IRLR 374 and Wincanton Group v Stone [2013] IRLR 178. It also contended that the final written warning was within the range of reasonable responses. The Appellant contended that the former test was not applicable to a dismissal for capability and/or that neither test was satisfied in view of procedural flaws in the disciplinary process.
Held (dismissing the appeal) that the ‘manifestly inappropriate’ test applies generally when an Employment Tribunal considers whether it can look behind a final written warning in its application of section 98(4). On the facts of this case the Tribunal was entitled to find that the Respondent acted fairly in applying its internal procedures, that a final written warning was not manifestly inappropriate and that dismissal overall was fair.

Bourne J
[2021] UKEAT 0110 – 19 – 1708
England and Wales
CitedDavies v Sandwell Metropolitan Borough Council CA 26-Feb-2013
Lewison LJ said that Employment Tribunals should exercise more active control over cases before them, saying: ‘The function of the Employment Tribunal is a limited one. It is to decide whether the employer acted reasonably in dismissing the . .
CitedWincanton Group Plc v Stone and Another EAT 11-Oct-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Mr Stone first had a written warning for misconduct in November 2009. Within the currency of the warning, he committed a disciplinary offence of a . .
CitedBandara v British Broadcasting Corporation EAT 9-Jun-2016
EAT Unfair Dismissal: Reasonableness of Dismissal – The Employment Tribunal did not err in law in concluding that the final written warning issued to the Claimant by the Respondent was ‘manifestly inappropriate’: . .

Lists of cited by and citing cases may be incomplete.


Updated: 01 November 2021; Ref: scu.666690