In person For the v Mr M Foster, solicitor — 2019

The tribunal found that concerns about Mr Johnson’s performance as a Business Analyst pre-dated Ms Tozer becoming his line manager, with underachieving ratings in late 2015 and early 2016 and continuing concerns into 2017. It accepted that the respondent started an informal PIP in April 2017, moved to a formal PIP in May, extended the review period, and provided support including review meetings, access to learning material, and external coaching. The tribunal found the targets were clear and that Mr Johnson did not produce separate SMART alternatives when invited to do so.

By September 2017 the respondent concluded that the claimant had not improved to the required standard, particularly in documentation quality, stakeholder engagement, and drive/ownership, and the matter was referred to disciplinary. At the disciplinary hearing Mr Cook upheld two performance allegations and dismissed the claimant for capability, while finding no case to answer on one aspect of pace/thoroughness. The tribunal accepted that Mr Cook considered alternatives such as retaining the claimant in another BA role or a lower-graded role, but concluded those options would not resolve the concerns.

On unfair dismissal, the tribunal held that capability was the genuine reason for dismissal and that the employer had acted within the range of reasonable responses under s.98(4) ERA 1996. On the discrimination claims, the tribunal held that the claimant failed to establish less favourable treatment or a prima facie case under s.136 EqA 2010. It found that Ms Doris Rosmann-Begg was not a proper comparator because there were no comparable performance concerns about her, her delay was outside her control, and she had flagged it in advance. The tribunal therefore dismissed the direct age and direct sex discrimination claims and vacated the listed remedy hearing.