Ms J Ford v Represented by Ms E Drysdale Solicitor BFE Electrical Limited — 2019

Ms J Ford worked as a part-time telesales assistant from February 2016. The respondent operated sales targets for the team, and the tribunal found that the claimant’s target of £5,000 per month was reasonable and achievable. The claimant received a verbal warning on 8 October 2018 for missing target, then a final written warning on 9 January 2019 after continued underperformance. The final written warning was not appealed.

The tribunal found that, after the final written warning, the claimant’s sales were January 2019 £1,590.87, February 2019 £1,864.80, March 2019 £15,707.93, and April 2019 £427.94. It accepted the respondent’s case that the March figure was exceptional because a £13,826.16 sale attributed to the claimant had in fact been secured only after substantial work by JM and a colleague, and that without it her March sales would have been £1,881.77. The tribunal also found that no other sales-team member was in truly parallel circumstances because none had a live final written warning.

Applying s.98(1) and (2) ERA 1996, the tribunal held that capability was the reason for dismissal. Applying s.98(4) ERA 1996 and the authorities it cited, including Alidair Ltd v Taylor, Iceland Frozen Foods Ltd v Jones, and James v Waltham Holy Cross Urban District Council, it found that JM honestly believed the claimant would not improve to the required level and had reasonable grounds for that belief. The tribunal took account of the warning history, the post-warning sales figures, the lack of any request for further training, and the fact that the final written warning had not been appealed.

On procedure, the tribunal found that the claimant had been informed of the performance issue, that the respondent’s collation of sales figures was a sufficient investigation in the circumstances, that the disciplinary invitation letter was handed to her before the 1 May 2019 hearing, and that she was given a sufficient opportunity to respond. It also found that she was told of the dismissal decision at the hearing, that written confirmation was sent, and that she was afforded an appeal right. The tribunal held that the respondent acted within the range of reasonable responses and dismissed the unfair dismissal claim.