G Kikwera-Akaka v Salvation Army Trading Company Limited

A fair capability dismissal normally requires the employer to identify the deficient aspects of performance, explain the improvement required, provide reasonable support and opportunity to improve, and warn clearly that employment is at risk. The ultimate question remains the statutory assessment of fairness under Employment Rights Act 1996, section 98(4).

Conduct and capability are distinct potentially fair reasons, although the underlying facts may overlap. Where the employer has made the relevant performance concern, required change and risk of dismissal sufficiently clear, a final conduct warning and a performance-improvement process may properly inform the assessment of a later capability dismissal.

The claimant, a sales assistant in the respondent charity's shop network, was dismissed after a final written warning arising from threatening behaviour towards a vulnerable volunteer and a subsequent performance improvement plan. His interaction with volunteers was an important aspect of that plan. The plan ended four days before its intended end date.

The Employment Tribunal at Croydon dismissed claims including unfair dismissal. It found that the dismissal was for capability and performance, that the claimant had been warned of the risk of dismissal before the capability hearing, and that he had been given a fair opportunity to improve. The claimant appealed, principally contending that the warning related only to misconduct and that the Tribunal's alternative Polkey assessment was flawed.

The central issue was whether the Tribunal had erred in finding a fair capability dismissal despite the overlap between the misconduct warning and the performance process.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the capability and performance dismissal was fair under section 98(4) of the Employment Rights Act 1996.

2. Capability and conduct require different analyses. A capability process should normally be supportive rather than adversarial. The employer should identify inadequate performance, specify the required change, explain how improvement will be measured and reviewed, offer reasonable support, and make clear that continued inadequate performance puts employment at risk.

3. There may nevertheless be factual overlap between conduct and capability. The common requirement is clarity about the matters placing employment at risk, how they may be rectified, and the employee's fair opportunity to respond and alter their approach.

4. On the Tribunal's findings, the claimant was given that clarity and opportunity. The final warning and the associated discussion identified the need to improve his dealings with volunteers. The PIP specifically addressed that issue, support and training were offered, and the invitation to the capability hearing expressly warned that dismissal might follow. The claimant continued to deny that he needed to change his approach or undertake further training.

5. The Tribunal was entitled to take account of the final written warning. It was issued in good faith, was not manifestly inappropriate, and was relevant because effective interaction with volunteers was both a conduct concern and an important element of performance. Although allowing the full four weeks of the PIP would have been preferable, the Tribunal was entitled to find that ending it four days early did not take the procedure outside the range of reasonable responses.

6. The Reasons had to be read as a whole. They adequately addressed warning, opportunity to improve and fairness. The alternative Polkey conclusion was also open to the Tribunal: a fair procedure would have involved a short extension and an express further warning, but the Tribunal permissibly found that the claimant would not have changed and that dismissal would still have occurred.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 49.
• Employment Tribunal, Croydon: claims, including unfair dismissal, dismissed by judgment sent on 8 June 2022; written reasons sent on 25 July 2022.