Mrs Maria Alegandra Aguado v Aviva Employment Services Limited — 2023

Mrs Maria Alegandra Aguado was employed by Aviva Employment Services Limited as a claims handler from 22 September 2008. The respondent relied on capability as the reason for dismissal. The tribunal found that performance concerns had been raised in the claimant's mid-year review in May 2020 and were revisited repeatedly through the following year, including around estimating, data protection, wrap time, call control, use of templates, and receptiveness to feedback. It found that the claimant's performance was measured through method reviews and that her development opportunity percentage remained high, including during the formal process that began in June 2021.

The tribunal accepted that the respondent genuinely believed the claimant was under-performing. It held that the claimant had adequate time and support to improve, noting that she had over 12 years' service, that concerns had been communicated well before formal action began, and that the formal performance process lasted longer than the procedure usually anticipated. It also held that the respondent acted reasonably in not finding alternative employment, relying on the terms of the improving performance procedure, the respondent's view of the claimant's performance, and the fact that by appeal stage the claimant said she did not want to return to work for the respondent.

On the final issue, the tribunal held that dismissal was within the range of reasonable responses open to the respondent. It noted that the respondent's letter of 7 October 2021 recorded average fundamental development opportunities in around 90% of the claimant's claim files during the previous six weeks, against a stated aim of about 20%. The tribunal therefore found that the claimant was not unfairly dismissed. It did not determine remedy issues because the claim failed, though it noted that the claimant's schedule of loss did not give credit for payment in lieu of notice.