The Respondent raised concerns about the Claimant's performance and an informal performance management process commenced. Objectives were set, with targets to be measured at three different dates. Before these deadlines arrived, the Claimant was assessed as having made insufficient progress and was given a final written warning. He was offered a month's compensation to leave the company. The Claimant then went off sick but was asked to return when there was no conclusion on the settlement agreement. The Claimant continued to remain on sick leave and was eventually dismissed. The ET dismissed his claim of unfair dismissal, saying it could not look behind the final written warning which was not “manifestly inappropriate”, applying the test in Davies v Sandwell MBC [2013] IRLR 374 and Wincanton Group v Stone [2013] IRLR 178. It also contended that the final written warning was within the range of reasonable responses. The Claimant appealed, contending that the former test was not applicable to a dismissal for capability and/or that neither test was satisfied in view of procedural flaws in the disciplinary process.

The EAT dismissed the appeal. The “manifestly inappropriate” test applies generally when an ET considers whether it can look behind a final written warning in its application of section 98(4). On the facts of this case the ET was entitled to find that the Respondent acted fairly in applying its internal procedures, that a final written warning was not manifestly inappropriate and that dismissal overall was fair.