Mr F Ghanaati v South West London & St George’s Mental Health NHS Trust — 2022

Employment Judge Khalil, sitting alone at London South on 11 and 12 January 2022, heard Mr F Ghanaati’s unfair dismissal claim against South West London and St George’s Mental Health NHS Trust. The claimant was employed as a Band 6 IT Senior Systems Administrator until dismissal with effect from 17 February 2020. The respondent relied on capability. The tribunal recorded earlier concerns from the claimant’s managers and predecessors, including a 25 January 2016 disciplinary outcome which was later reduced on appeal, and a capability process that was commenced in April 2016, then restarted in September 2018 after a long delay.

The tribunal found that the respondent genuinely believed the claimant was underperforming and had reasonable grounds for that belief. The process was task-focused and the claimant was given repeated action plans, reviews and escalating stages of the capability procedure. By the stage 3 hearing in December 2019, the tribunal found that 9 of the 12 assigned tasks had not been completed, and that some tasks had been completed by Mr Hughes or reassigned. The tribunal rejected the claimant’s emphasis on partial completion and accepted the respondent’s position that the tasks had not been completed to the required standard or within a reasonable time.

The tribunal also rejected the claimant’s arguments about bias, inadequate investigation, delay, and procedural unfairness. It found that redeployment and demotion were considered but were open to be rejected on the evidence before Mr Lee. It further found that any issues relating to the stage 2 appeal point, the grievance process, delay in the appeal, or the attendance of Mr Cavaye did not undermine the dismissal decision. The tribunal concluded that the dismissal was both procedurally and substantively within the range of reasonable responses and that the claim failed.

In reaching that conclusion, the tribunal referred to s.98(2) and s.98(4) ERA 1996, the two-stage capability approach in Alidair Ltd v Taylor, the range of reasonable responses principle in Iceland Frozen Foods Ltd v Jones, the procedural point in Sainsbury’s Supermarkets Ltd v Hitt, and the treatment of previous warnings and disparity arguments in Davies v Sandwell MBC and Hadjioannou v Coral Casinos Ltd.