Capability downgrade and dismissal: a fair process within the band of reasonable responses
An electrical technician with two years' service was fairly dismissed after failing capability tests and refusing a downgraded post. The tribunal rejected claims of race and religion discrimination.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as an Electrical Biomedical Engineering technician from November 2017.
- Capability concerns arose soon after employment, leading to restricted duties and a formal capability process.
- The claimant was downgraded from Band 6 to Band 4 in January 2020 after failing agreed tests.
- The claimant refused the downgraded post and was dismissed in August 2020.
- The claimant alleged direct discrimination because of race and religion, but the tribunal found no evidence of discrimination.
- The tribunal found the dismissal was fair and within the band of reasonable responses.
Timeline
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Employment started
Claimant commenced employment as an Electrical Biomedical Engineering technician, Band 6.
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Informal capability meeting
First informal capability meeting held; claimant placed on restricted duties.
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Appraisal
Appraisal noted claimant had not developed full range of skills for the role.
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Verbal warning
Claimant received a verbal warning for a near miss incident involving an oxygen flowmeter.
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Formal capability meeting
Performance improvement plan agreed; tests scheduled.
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Inomax test
Claimant performed poorly on the Inomax test.
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T34 test
Claimant objected to performing the T34 test; completed next day.
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Downgrade decision
Claimant informed he was being downgraded to Band 4 with one month's notice.
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Sick leave
Claimant went absent on sick leave and never returned.
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Appeal dismissed
Appeal against downgrade dismissed; claimant chose dismissal over accepting downgraded post.
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Dismissal appeal
Appeal against dismissal heard and unsuccessful.
The legal issue
The tribunal had to decide whether the dismissal for capability reasons was fair, and whether the employer discriminated against the claimant because of his race (Bangladeshi) or religion (Muslim).
The outcome
The tribunal dismissed all claims. It found that the employer had genuine capability concerns, followed a formal process, and gave the claimant a chance to improve. The downgrade and subsequent dismissal were reasonable.
- Unfair dismissal claim: failed
- Direct race discrimination claim: failed
- Direct religion/belief discrimination claim: failed
- Unlawful deduction from wages claim: failed
No compensation was awarded.
Lessons & takeaways
- Employers should follow a clear capability procedure and give employees a reasonable opportunity to improve before dismissing.
- Offering a downgraded post with training and support can make a dismissal fair if the employee refuses it.
- Short-serving employees (under two years) have limited unfair dismissal rights, but the employer still acted fairly here.
- Discrimination claims require evidence of less favourable treatment because of a protected characteristic; mere disagreement with a decision is not enough.
- Employees should engage with capability processes and consider alternative roles offered before dismissal.
A capability process that held up to scrutiny
This case shows that a well-documented capability process can protect an employer from unfair dismissal claims, even when the employee disputes the outcome. The claimant, an electrical biomedical engineering technician, was employed for just over two years when capability concerns arose. The employer placed him on restricted duties, gave informal warnings, and ultimately agreed a performance improvement plan with tests.
When the claimant failed those tests, the employer decided to downgrade him from Band 6 to Band 4, with a month's notice. The claimant refused the downgraded post and went on sick leave. After an unsuccessful appeal, he chose dismissal rather than accept the lower grade. The tribunal found that the employer acted reasonably throughout.
What the employer did right
The employer followed a formal capability procedure, gave the claimant opportunities to improve, and offered a downgraded role with continued support. When the claimant refused, dismissal was a reasonable option. The tribunal noted that the decision was within the band of reasonable responses for an employer in the same situation.
Discrimination claims rejected
The claimant also alleged direct discrimination because of his race (Bangladeshi) and religion (Muslim). He pointed to the treatment he received, but the tribunal found no evidence that it was because of his protected characteristics. The employer's actions were based on genuine capability concerns, not bias. The tribunal also rejected a claim for unlawful deduction of wages, as the downgrade was lawful under the contract.
Key takeaway for similar cases
This case reinforces that employers can fairly dismiss for capability if they follow a proper process and consider alternatives. Employees who feel they have been treated unfairly should check whether the employer's process was reasonable, not just whether they disagree with the outcome. Discrimination claims need concrete evidence of a protected characteristic being a cause of the treatment.
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