Miss E Crotty v SMRS Limited — 2020

The Tribunal found that the respondent had established capability as the reason for dismissal under section 98(1) and (2) of the Employment Rights Act 1996. It accepted the evidence of Miss Cope and Mr Windsor that their decisions were based on their perception of the claimant’s performance in her role, not on the fact that she had raised a grievance in November 2017. The Tribunal rejected the claimant’s case that there had been no performance concerns before April 2018 and found that performance issues had been raised with her by 14 November 2017 at the latest.

The Tribunal found that the grievance process was handled appropriately and in good faith by Mrs Sturgess. It accepted that the grievance outcome focused on resolving the claimant’s issues by changing her line manager and clarifying her role, rather than determining the merits of every complaint in express upheld/not upheld terms. The Tribunal also found that the later January and February 2018 meetings did involve performance discussions, preferring Miss Cope’s evidence where there was a dispute.

On the final written warning issued after the capability hearing on 6 April 2018, the Tribunal held that it was not imposed in bad faith, that there were grounds for it, and that it was not manifestly inappropriate. It found that Miss Cope genuinely believed in the performance concerns she identified, including concerns about financial reporting and forecasting. The Tribunal then found that dismissal on 4 June 2018 fell within the range of reasonable responses, taking account of the warning, the prior performance management, and the opportunity given to improve. It also held that the respondent’s appeal process on 21 June 2018 was a full rehearing and that Mr Windsor carefully reconsidered the matter before upholding the dismissal.

The Tribunal held that the respondent had complied with the ACAS Code of Practice on Disciplinary and Grievance Procedures. It said there was no need to determine Polkey reduction or contributory fault because of its findings on fairness. The claim of unfair dismissal was therefore dismissed.