Mr Sabourin’s line manager had concerns about his performance, which he sought to address informally.
When this was unsuccessful, a formal performance improvement plan was put in place. There was no improvement, so a first written warning was issued and this was followed by a final written warning. A final performance meeting was held two weeks later, where Mr Sabourin was given notice of dismissal for poor performance. He appealed against his dismissal, which was unsuccessful, and he brought a claim for unfair dismissal. The ET dismissed his claim, finding that the decision to dismiss fell within the range of reasonable responses so was fair. Mr Sabourin appealed to the EAT.
His appeal was upheld by the EAT on one narrow point. The EAT decided that the ET had failed to consider the impact on fairness of the suggestion that BT had not taken account of Mr Sabourin’s performance in the two weeks after the final written warning was issued. The ET should have examined this point and the case was sent back to it to look at again.
This decision seems harsh but it reminds employers that they need to look at the whole period of performance up to the date of the decision relating to potential dismissal when deciding whether to dismiss an employee for poor performance. Failing to do this risks a finding of unfair dismissal, particularly if the employee’s performance improved after the final warning.