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Tribunal Confirms Fair Dismissal for Poor Performance: Similarities and Differences Between Capability and Misconduct Dismissals
Kikwera-Akaka v Salvation Army Trading Company Ltd [2024] EAT 49
The Employment Appeal Tribunal has upheld the fair dismissal of a Claimant employed by the Salvation Army’s trading arm, which operates charity shops staffed by a mix of employees and volunteers. The Claimant, employed since 2016, had faced ongoing criticism for his poor attitude, lack of teamwork, rudeness to customers, and avoidance of tasks.
In this case, a disciplinary incident involving the Claimant and a vulnerable volunteer led to a gross misconduct charge. While initially found guilty, the Claimant received a final written warning instead of dismissal and was placed on a personal improvement plan (PIP), specifically aimed at improving his interactions with volunteers. However, the Claimant resisted the suggestion that he needed to improve, insisting that his behaviour was not an issue.
After the PIP ended and during a performance review meeting, the Claimant continued to deny the need for improvement. Despite a clear warning that dismissal was a possible outcome, he was terminated from his position. His appeal was unsuccessful, as he maintained his refusal to acknowledge the need for any changes.
The EAT commented on the authorities which set out that when assessing the fairness of a dismissal, it is crucial to distinguish between dismissals for conduct and those for capability. While some procedural elements may overlap, dismissals for capability require employers to follow specific steps. These include clearly identifying areas of inadequate performance, outlining what improvements are necessary, explaining how progress will be measured, and offering the employee a fair opportunity to improve. Warnings play a critical role in this process, helping to ensure that employees are fully aware of the expectations and consequences if improvements are not made.
The EAT however found that the Respondent, Salvation Army Trading, had given the Claimant ample opportunity to improve his performance, particularly in his interactions with volunteers, which had been a key concern linked to both his misconduct and capability. The EAT was satisfied that the Tribunal did properly consider the question of adequate warning. On the facts, the Tribunal had found that the Respondent had followed a fair process and correctly applied relevant legal principles, confirming that the dismissal was justified based on the Claimant's failure to meet performance expectations. The Tribunal did not err in its approach or in its application of relevant legal principles and it properly considered whether, on the facts of this case, the dismissal was fair within the meaning of s.98(4) of the Employment Rights Act 1996.
The case illustrates the fine line between dismissals for capability and misconduct, noting that in some situations, the distinction between the two may be blurred.
