Claimant v WIND Financial Information UK Ltd
Outcome
Individual claims
The tribunal found the dismissal was for capability (poor performance), a potentially fair reason under ERA s.98. However, the respondent failed to follow proper procedure: no clear warnings were given before dismissal, the formal written warning was issued one week after the dismissal notice, and the ACAS Code of Practice on Disciplinary Procedures was not followed. The dismissal was therefore unfair on procedural grounds.
Facts
The claimant was employed as a Sales and Account Executive from September 2021 to February 2024. He was dismissed for capability (poor performance) under the respondent's quarterly performance assessment policy. The respondent's managers had raised issues with his performance through polite reminders and neutral language, but never gave clear warnings. A formal written warning was issued on 25 January 2024, one week after the dismissal notice was given on 18 January 2024. The claimant disputed that his performance was poor and believed his own sales methods were superior to company policy. An appeal was held but did not follow ACAS procedures.
Decision
The tribunal found the dismissal was for a potentially fair reason (capability) but was procedurally unfair. The respondent failed to give clear warnings, issued the formal warning too late, and did not follow the ACAS Code. However, applying Polkey, the tribunal found the claimant would have been dismissed within 4 months in any event, as he was unlikely to have improved given his refusal to accept any deficiencies in his performance. The compensatory award was capped at 4 months' salary and benefits, with a 25% ACAS uplift. A remedy hearing was ordered.
Practical note
Even where dismissal is for a potentially fair reason, employers must follow proper procedures including clear warnings and adherence to the ACAS Code; failure to do so renders the dismissal unfair, though Polkey reductions may apply where dismissal would have occurred regardless.
Adjustments
Respondent failed to follow the ACAS Code of Practice on Disciplinary Procedures in both the dismissal and appeal process. A 25% uplift was applied to the compensatory award.
Legal authorities cited
Statutes
Case details
- Case number
- 2218675/2024
- Decision date
- 26 March 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- financial services
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Sales and Account Executive
- Service
- 2 years
Claimant representation
- Represented
- No