G Kikwera-Akaka v Salvation Army Trading Company Limited

The Employment Appeal Tribunal dismissed the appellant's challenge to an Employment Tribunal finding that his dismissal for capability and performance was fair. The EAT applied the statutory test in section 98(4) of the Employment Rights Act 1996 and upheld the factual findings that the final written warning, the subsequent personal improvement plan (PIP) and the capability review were legitimately interconnected. The tribunal had found that the PIP expressly covered interaction with volunteers (an important element of the role) and that the claimant had been warned pre-dismissal that dismissal might result. The tribunal’s assessment that the claimant had refused offered training, did not accept fault, and was unlikely to change was within the range of reasonable responses. The EAT also rejected the Polkey challenge, concluding that even if there had been limited procedural shortcoming (the PIP being shortened by a few days), on the balance of probabilities the outcome would have been the same.

This appeal concerned claims brought by the claimant following his dismissal from a Salvation Army trading charity shop. The claimant had been issued a final written warning after an incident with a vulnerable volunteer, placed on a four-week personal improvement plan (PIP) addressing both conduct and capability (in particular his interaction with volunteers), and later invited to a capability/performance meeting expressly warning that dismissal might follow. He was dismissed following that meeting and the dismissal was upheld at internal appeal. The Employment Tribunal (Croydon) dismissed the claimant's claims for unfair dismissal, failure to provide written reasons under section 92 ERA 1996, race discrimination, harassment and victimisation.

Procedural history: the ET heard the matter in January and May 2022, sent a decision dismissing all claims on 8 June 2022 and written reasons on 25 July 2022. The claimant appealed to the EAT, which heard the appeal on 25 January 2024.

Nature of the claim / relief sought:

• (i) A claim of unfair dismissal and related statutory complaints (including alleged failure to give written reasons under section 92 ERA 1996).
• Claims of direct race discrimination, harassment related to race and victimisation were also advanced but were dismissed by the ET and not successful on appeal.

Issues framed by the court:

• (ii) Whether the dismissal was for capability/performance or conduct, and whether the employer had given adequate warning and a fair opportunity to improve where capability was relied upon.
• Whether the final written warning (issued for misconduct) could legitimately be relied upon in a later dismissal for capability/performance.
• Whether any procedural shortcoming (notably the PIP ending a few days early) required a Polkey reduction in compensation because a fair procedure might have produced a different outcome.

Court's reasoning on those issues:

• (iii) The EAT affirmed the ET’s factual findings that the final written warning was relevant to performance because the claimant’s inability to work with volunteers was both a conduct and a performance issue in a workplace where volunteers (including vulnerable volunteers) were integral to operations. The PIP specifically addressed interaction with volunteers; training was offered but refused; the claimant continued to deny any need to change. The ET had warned the claimant in advance of the capability hearing that dismissal might result. The EAT concluded those findings fell within the band of reasonable responses under section 98(4) ERA 1996 and that there was no error of law in the tribunal’s approach.
• The EAT also upheld the ET’s Polkey analysis: even if the PIP had run its final four days, on the balance of probabilities the claimant would not have changed his stance and dismissal would have followed, so any compensation reduction would be 100%.

The judgment also contains observations on the differences and overlap between fair procedures for conduct dismissals and for capability dismissals, stressing the importance of clarity, warning and support in capability processes.

This is an appeal against an Employment Tribunal decision. The EAT dismissed the appeal. The EAT held that the ET had correctly identified the reason for dismissal as capability and performance, had properly applied the statutory reasonableness test in section 98(4) of the Employment Rights Act 1996, and had not erred in concluding that the claimant had been given fair warning and a reasonable opportunity to improve. The EAT also upheld the ET’s Polkey assessment that, on the balance of probabilities, continued procedure would not have changed the outcome.

Employment Tribunal (Croydon) hearing on 12–14 January 2022 and 25 May 2022; Judgment dismissing all claims sent to the parties on 8 June 2022 and written reasons provided on 25 July 2022. Appeal to the Employment Appeal Tribunal determined by HHJ Tucker, judgment delivered 25 January 2024 ([2024] EAT 49).