Mr. T. Chisman v British Sugar plc FINAL HEARING — 2022

The tribunal found that the principal reason for Mr Chisman’s dismissal was capability within section 98(2)(a) ERA 1996. It accepted that British Sugar had genuinely believed he was unsuitable for the Planning Manager role and that belief was based on reasonable grounds: before dismissal, NT reviewed the three PIPs, the weekly review meetings and the job description, and PH reviewed the appeal papers, the dismissal letter and Mr Chisman’s appeal materials. The tribunal also accepted that the Claimant was a hardworking employee, but concluded that the employer had sufficient material to justify its belief that he was not meeting the standards required for the role.

The tribunal accepted that Mr Chisman had a four-week trial period when he moved into the combined role in September 2019, and that no formal review was held at the end of that period, but found that there were no issues during the trial period and that this omission did not render the later dismissal unfair. It found that the Respondent then gave him three PIPs over about 20 weeks, with weekly one-to-one reviews, written warnings on 6 March 2020 and 20 April 2020, and an appeal against the final written warning that was unsuccessful. The tribunal noted that the COVID-19 period added pressure during the second PIP, but said this was addressed by extending the third PIP to eight weeks.

On procedure, the tribunal held that the process was within the range of reasonable responses of a reasonable employer. It found that the Claimant had been given a reasonable chance to improve, that the absence of a clear warning at the first PIP stage did not make the process unfair in the context of the later warnings, and that the final written warning was not "manifestly inappropriate". The tribunal accepted that the Occupational Health referral should have been earlier, but held that this did not make the overall process unfair. It also found that although NT might have been prudent to ask about alternative roles, there was no absolute obligation to do so in the circumstances, and it gave weight to the Claimant’s pre-prepared statement referring to a redundancy package rather than a wish to stay employed.

The tribunal concluded that dismissal for capability fell within the band of reasonable responses and that the requirements identified in James v Waltham Holy Cross and Alidair v Taylor were met. It therefore dismissed the unfair dismissal claim and vacated the listed remedy hearing.