Hello everyone and welcome back to our case of the week. I’m Kyle and I will be your guide in today’s case. For anyone that missed last week’s newsletter, you can find that here. Today, I am writing to provide an overview of a recent case, Kikwera-Akaka v Salvation Army Trading Company Ltd, which offers valuable insights into the fairness of dismissals for capability and the importance of following proper procedures.

In this case, the Claimant worked for the Respondent charity in one of their shops, which was staffed by employees and volunteers, including vulnerable adults. The Claimant received a final written warning for misconduct after threatening to punch a vulnerable volunteer. Subsequently, he was placed on a Performance Improvement Plan (PIP) specifically aimed at improving his interaction with volunteers. Despite this, the Claimant denied needing any training or improvement and blamed the volunteers instead.

The PIP was shortened by four days before the Claimant was invited to a capability review meeting, where he was expressly warned that dismissal was a possibility. The Claimant maintained that he did not need to improve his interaction with volunteers. Ultimately, he was dismissed for capability/performance issues, primarily his inability to work effectively with volunteers, which was essential to the Respondent’s operations.

The Tribunal applied the reasonableness test under section 98(4) of the Employment Rights Act 1996 and concluded that the dismissal was fair. It found that the final written warning for misconduct was relevant to the subsequent dismissal for capability, as the issues overlapped. The Tribunal also determined that the Respondent had given the Claimant a fair opportunity to improve his performance through the PIP and capability review, despite the PIP being shortened by a few days.

The Tribunal’s decision was upheld by the Employment Appeal Tribunal, which dismissed the Claimant’s appeal. The case highlights the importance of giving employees fair warning and an opportunity to improve performance before dismissal. It also underscores the relevance of prior warnings to subsequent dismissals when the issues are interconnected.

Takeaway Points

To avoid similar situations, HR professionals should ensure that:

  1. Employees are given clear and fair warnings about performance issues and the potential consequences.
  2. Performance Improvement Plans are implemented and followed through diligently, providing employees with a genuine opportunity to improve.
  3. Any overlap between conduct and capability issues is clearly communicated to the employee, ensuring they understand the implications of their actions.
  4. Proper procedures are followed, and any deviations are justified and documented to avoid claims of unfair dismissal.

By adhering to these practises, HR professionals can help ensure that dismissals for capability are fair and legally sound.