The Claimant was dismissed and the ET found the reason for the dismissal was capability – his capacity to achieve profitability in the business. The ET found the dismissal procedurally unfair because the Respondent failed to follow its own procedures, which mirrored the ACAS Code, and which would have involved it taking steps formally to establish the facts, inform the Claimant of the problem, arrange meetings for him to put his case, decide on the outcome, and offer an appeal. Applying the Polkey principle, the ET considered that had the Respondent acted fairly, the Claimant would have been fairly dismissed a little over two months following the Board meeting which decided on his dismissal. The Respondent appealed the findings of unfairness and the Polkey assessment.

The EAT dismissed the unfairness appeal but allowed the Polkey appeal. The Respondent was correct that there is no absolute requirement that in every case particular procedural steps must be taken before an employee can be dismissed fairly for capability reasons. However, on a fair reading of the reasons the ET (i) had imposed no such requirement, (ii) had directed itself correctly, (iii) had not ignored the Claimant’s senior position or the issue of warnings, and (iv) had not substituted its decision for that of the employer. The appeal against the Polkey finding was allowed. The ET wrongly confined its consideration to the period from 17 March 2023 onwards, and had ignored the period from 24 February 2023 when the concerns about capability had crystalised. Further the Tribunal failed to give adequate reasons for its conclusion that a fair dismissal would have taken place by no later than 31 May 2023. This issue was remitted.