Your employer must consider your performance after a final warning, not just before it.
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. quashed the fair-dismissal finding; case remitted to consider performance after the final warning.”
If you're dismissed for poor performance after a final warning, your employer has to look at how you actually performed since that warning, not just repeat the evidence that led to it.
- Keep your own record of what changed after a final warning, including feedback, results, or support you received, since that evidence matters if you're later dismissed.
- A dismissal decision based only on the record that produced your final warning, without considering what happened afterwards, may not have followed a fair process.
- If you think your employer skipped over your recent performance when deciding to dismiss you, get advice on whether the process was fair before accepting the outcome.
The situation
A long-serving project manager working in a data compliance team was placed on an informal performance improvement planA structured process an employer uses to address concerns about an employee's performance, setting targets and a timescale to meet them before deciding whether to take further action, including dismis... after his manager raised concerns about nine areas of his work. When his manager considered there had been no improvement, the plan was formalised two months later, the improvement areas reduced to seven, and a first written warningA formal sanction issued after a disciplinary process, recorded on your file for a set period. It is not a dismissal, but it can be used as a prior warning if a further disciplinary matter arises duri... issued. A final written warningA formal sanction one step below dismissal, usually issued for a serious matter or where a written warning is already live. A further disciplinary matter during the live period will typically result i... followed in January, after which a more senior manager decided, around two weeks later, to dismiss him for poor performance.
What the tribunal found
The employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. found the dismissal fair. It accepted that the senior manager genuinely believed the project manager lacked the capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab... to do the job, that this belief rested on reasonable grounds, and that the company had carried out a thorough and reasonable investigation before reaching that conclusion.
On appeal, the Employment Appeal Tribunal took a narrower view. The real question, the EAT said, was whether the senior manager had actually looked at the project manager's performance in the two weeks since the final warning, rather than just relying on the record that produced it. The tribunal had not addressed that question, so the EAT sent the case back for it to be considered properly, as part of the reasonableness test for capability dismissals under s.98 Employment Rights Act 1996The primary piece of legislation setting out employees rights in the UK, including the right not to be unfairly dismissed, the right to a written statement of employment particulars, and rights relati....
Sabourin v BT Group Plc, [2025] EAT 171, Employment Appeal Tribunal, 4 November 2025