The Claimant was given a final written warning after it was found he was unable to perform the role adequately. He was given two weeks to show an improvement but he was dismissed after this period on capability grounds. He lost his claim of unfair dismissal. The ET considered whether enough time was allowed between the final written warning and the next review meeting, to give the Claimant a fair opportunity to improve his performance before it was reviewed again, concluding that the process was “speedy”, but not unfair. The Claimant appealed on the grounds that the Respondent had only considered what had happened before the final warning was given without considering what had happened since.

The EAT allowed the appeal. The unfair dismissal decision was quashed and remitted to the same ET to decide whether, in fact, the Respondent did or did not consider what had happened since the date of the final written warning, and then, taking account also of the findings already made, whether the dismissal was fair or unfair.