In Person v Respondent — 2020

Mr Birins was employed by Tesco Stores Limited from 27 June 2011 as a weekend warehouse operative at Daventry. The tribunal found that from 2018 his performance declined under Tesco's My Performance capability process, which used staged warnings and set time-based targets for warehouse tasks. The claimant said he had not been properly trained, did not understand the performance expectations, and should have been given alternative work; the tribunal rejected those assertions and found he understood the process, knew performance rather than conduct was in issue, and had been told repeatedly that he needed to work faster and reduce still time and breaks.

The tribunal found that the respondent acted on a genuine and reasonable belief that the claimant was incapable of performing to an acceptable level. It held that the final written warning imposed on 6 October 2019 was not manifestly inappropriate and would not be reopened. The claimant had been given a long period to improve, including warnings, meetings, feedback and appeal rights, and by the time of dismissal his performance remained in the 'missing' range. Applying section 98 ERA 1996 and the band of reasonable responses test, the tribunal concluded that the dismissal for capability was fair and dismissed the unfair dismissal claim.

The tribunal dismissed the holiday pay claim. It upheld the wrongful dismissal claim and awarded £619.95, accepting that the respondent had conceded there was no contractual PILON clause and that the claimant had not been paid the sums due on termination. The award was made up of notice-related elements identified in the reasons, including annual bonus, Covid recognition bonus and weekend premium. The tribunal also upheld the unlawful deductions claim and awarded £212.46 for two unpaid shifts on 29 March 2020 and 4 April 2020.