In this case, an employer's decision to dismiss an employee for poor performance did not take into account the employee's performance in the two weeks after he was given a final written warning. The Employment Appeal Tribunal (EAT) held that the tribunal had erred in failing to consider whether this impacted the fairness of the dismissal.
Facts
Mr Sabourin had worked for BT Group Plc (BT) since 2009, and had been a project manager in the data compliance and assurance team since November 2021.
Due to concerns about Mr Sabourin's performance, his line manager, Mr Chown, initiated a performance review process in August 2022 in accordance with BT's policies. On 18 October 2022, an informal performance improvement plan (PIP) was agreed, identifying nine areas for improvement. The agreed goals were reviewed on a weekly basis, but Mr Chown considered there was no improvement.
At a formal performance meeting on 23 November 2022, the PIP was formalised, the goals were reduced from nine to seven, and Mr Chown issued Mr Sabourin with a first written warning. Mr Sabourin did not appeal the warning.
A further formal performance meeting was held on 5 January 2023, at which the goals were discussed in detail. Mr Chown considered that Mr Sabourin had not made sufficient progress, and issued him with a final written warning.
On 20 January 2023, a final performance meeting was held between Mr Sabourin and Mr Dalby, who was Mr Chown's line manager. Mr Dalby decided to give Mr Sabourin notice of dismissal for poor performance. This was confirmed by letter on 26 January 2023, and Mr Sabourin's employment terminated on 1 May 2023.
Mr Sabourin's internal appeal was unsuccessful, and he claimed unfair dismissal. An employment tribunal found that the dismissal was fair. BT had an honest belief that Mr Sabourin lacked the capability to do the job, and that belief was based on reasonable grounds following a thorough and reasonable investigation. Mr Sabourin had been given over four months to improve, with agreed goals that were reviewed on a weekly basis, as well as support and coaching. In all the circumstances, the tribunal was satisfied that the decision to dismiss fell within the range of reasonable responses.
The EAT upheld Mr Sabourin's appeal on one narrow point. This was that the tribunal had failed to consider the impact on fairness of the suggestion that Mr Dalby, in deciding to dismiss, had not taken into account Mr Sabourin's performance in the two week period after the final written warning was issued. Instead, he had simply based his decision on the evidence gathered by Mr Chown up to that point. The EAT concluded that the tribunal ought to have expressly considered this issue and remitted the case so that the tribunal could revisit it.
What does this mean for employers?
This case provides a timely reminder that, when considering whether to dismiss an employee for poor performance, employers should take into account the full period of an employee's performance up to the time of any decision relating to potential dismissal. It may seem unlikely that an employee who has failed to demonstrate improvement in the initial stages of a performance management process will suddenly pick themself up when given a final written warning. However, if that is the case, and the employer ignores the late improvement, there is a risk that a tribunal could find the dismissal unfair.
